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

Sanft and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3823 (1 October 2020)
Division:GENERAL DIVISION
File Number:2020/4545
Re:Shelton Sanft
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:1 October 2020
Place:Perth

The Reviewable Decision dated 8 July 2020 is set aside and substituted with the decision that the cancellation of the Applicant’s Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
....................[Sgd]...................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record –Applicant declared a drug trafficker – Direction No 79 – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor stepchildren – expectations of the Australian community – strength, nature and duration of ties to Australia – Applicant is a 47-year-old man who arrived in Australia as a 4-year-old child – extent of impediments if returned to New Zealand – impact on victims – impact of COVID-19 pandemic – reviewable decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) – ss 198, 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(ii), 501G, 501G(1)
Migration Regulations 1994 (Cth) – reg 2.55(7)(a)
Sentencing Act 1995 (WA) – s 32
CASES
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
DKXY v Minister for Home Affairs [2019] FCA 495
FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294
FYBR v Minister for Home Affairs (2019) 374 ALR 601
FYBR v Minister for Home Affairs [2019] FCA 500
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Morris and Minister for Immigration and Border Protection [2018] AATA 3374
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
SCJD and Minister for Home Affairs [2018] AATA 4020
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Wang and Minister for Immigration and Border Protection [2014] AATA 89
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s 501 And Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018) – paras 6.1, 6.1(3), 6.2, 6.3, 6.3(2), 6.3(3), 6.3(5), 6.3(7), 7(1)(b), 8, 11.3, 13(1), 13(2), 13.1, 13.1(1), 13.1(2), 13.1(2)(a), 13.1.1, 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(c), 13.1.1(1)(d), 13.1.1(1)(e), 13.1.1(1)(f), 13.1.1(1)(g), 13.1.1(1)(h), 13.1.1(1)(i), 13.1.2, 13.1.2(1), 13.1.2(1)(a), 13.1.2(1)(b), 13.2, 13.2(4), 13.2(4)(a), 13.2(4)(b), 13.2(4)(c), 13.2(4)(d), 13.2(4)(e), 13.2(4)(f), 13.2(4)(g), 13.2(4)(h), 13.3, 13.3(1), 14, 14(1), 14.1, 14.2(1), 14.3(1), 14.4(1), 14.5(1), Part C
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
1 October 2020
BACKGROUND

The Applicant is a 47-year-old man who is a citizen of New Zealand.
He first arrived in Australia in 1977 when he was approximately four years old with his mother (transcript/58).
The Applicant was convicted on 16 December 1991 in the Perth Court of Petty Sessions for his first offences of “assault public officer”, “disorderly obscene language” and “false name”. He received fines of $640 in total (S8/19).
On 24 July 1992, the Applicant was sentenced to his first term of imprisonment, being a total term of five years, for two counts of “robbery whilst armed in company” (S8/19).
On 28 April 2017, the Applicant was sentenced in the Perth District Court of Western Australia with respect to 20 criminal offences. Fifteen of these offences were sent to the District Court from the Magistrate’s Court pursuant to s 32 of the Sentencing Act 1995 (WA). He received a head sentence of two years and six months for the offence of “sold a prohibited drug namely Methylamphetamine”, and a total term of six years for the 20 offences (page 9 of sentencing remarks of 28 April 2017 in Exhibit A1).
Consequently, on 7 June 2019 the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (Visa) was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (G17/86-92) (Cancellation Decision). The Applicant was advised of this decision in a letter dated 7 June 2019. The basis of the cancellation was that the Applicant did not pass the character test because he had a substantial criminal record and was currently serving a full-time sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory (G17/87).
The letter dated 7 June 2019 advised the Applicant that he could make representations to seek revocation of the Cancellation Decision, which he did (G8; G9; G10).
However, after considering the Applicant’s representations, on 8 July 2020 a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (G2/11). This is the Reviewable Decision currently before the Administrative Appeals Tribunal (the Tribunal).
The Applicant was notified of the Reviewable Decision in a letter dated

10 July 2020 which was sent by registered post (G2/8-9). Regulation 2.55(7)(a) of the Migration Regulations 1994 (Cth) effectively provides that because the decision letter was sent by post, the Applicant was taken to have received it seven working days after the date of the document. Therefore, the date that the Applicant is taken to have received the decision is 21 July 2020, despite the fact that he actually received the decision on

23 July 2020 (G1/7).
On 29 July 2020, the Applicant lodged an application in the General Division of the Tribunal seeking a review of the Reviewable Decision (G1/3-4). Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the

Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which the Applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the

84-day period started running on 21 July 2020, meaning that the Tribunal must hand down a decision with respect to this application on or before 13 October 2020.
ISSUES
The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act), having regard to the primary and other considerations in Direction no. 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction No 79).
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on 21 and 22 September 2020.
The hearing was conducted via Microsoft Teams, with both the Applicant, as well as the Respondent’s legal representative, Ms Saunders, appearing via this platform. The Tribunal thanks the parties for their cooperation in doing so.
The Applicant gave oral evidence at the hearing and was cross-examined. The Tribunal found the Applicant to be a frank and honest witness who did not try to minimise his offending.
The Applicant called his partner, adult stepdaughter and 17-year-old stepdaughter as witnesses. Each witness gave evidence by telephone. The Applicant also sought to call his mother as a witness however she was unable to be contacted by the Tribunal to give evidence following numerous attempts throughout the afternoon. The Tribunal has, however, considered the written statement from the Applicant’s mother.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Bundle of documents submitted by the Applicant (Exhibit A1) including:
(i)five statements of material facts;
(ii)District Court of Western Australia sentencing remarks dated 28 April 2017;
(iii)
various documents from the Department of Corrective Services including an “At Risk Management System – Reception Intake Assessment” created

2 February 2017, a “Management and Placement – Sentenced” report approved on 9 May 2017, an “Application for Child Visits from Prisoners with a Restricted Visits Alert” report performed 27 March 2018, and an “Individual Management Plan” approved 1 April 2019;
(iv)medical progress notes;
(v)a letter dated 2 September 2020 from the Transitional Manager confirming the Applicant’s place in the six week “Good Way program”;
(vi)a brochure and frequently asked questions form concerning the “Solid Steps Alcohol and Other Drug Recovery Program”, the Applicant’s written request to attend this program dated 28 August 2020 and his request to transfer to the prison where the program is being conducted;
(vii)
typed note from the Applicant’s Case Management Co-ordinator dated

4 September 2020 setting out the Applicant’s requests to do programs and counselling;
(viii)letter to another prisoner in the Applicant’s prison dated 3 March 2020 titled, “notice of decision not to cancel visa under section 501 of the Migration Act”;
(ix)
handwritten reference letters from the Applicant’s mother dated

25 August 2020, the Applicant’s partner dated 6 September 2020, the Applicant’s adult stepdaughter which is undated, and the Applicant’s

17-year-old stepdaughter which is also undated.
(b)
Section 501G documents (G-documents) numbered G1 to G19, comprising

125 pages (Exhibit R1);
(c)
Respondent’s supplementary documents numbered S1 to S17, comprising

75 pages (Exhibit R2); and
(d)Respondent’s Statement of Facts, Issues and Contentions dated 27 August 2020 (Exhibit R3).
LEGISLATIVE FRAMEWORK
Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)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
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by

subsection (7)); or
…
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)
the person has been sentenced to a term of imprisonment of

12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or…
(Original emphasis.)
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
(Original emphasis.)
Direction No 79
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 79 under s 499 of the Migration Act, which commenced operation on

28 February 2019. This Direction replaced the previous Direction no. 65: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under
s501CA (22 December 2014) (Direction No 65).
Paragraph 6.1 of Direction No 79 sets out the “Objectives” of the Migration Act, with

paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a

full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction No 79 provides “General Guidance” as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No 79 sets out “Principles” which must be taken into account by persons making decisions under s 501CA(4) of the Migration Act, including the Tribunal:
(1)
Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on

non-citizens in the expectation that they are, and have been, law-abiding,

will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the principles set out in paragraph 6.3 of Direction No 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction No 79, with regard to the specific circumstances of the case (paragraph 13(1) of Direction No 79). Specifically, paragraph 13(2) of Direction No 79 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.

Paragraph 14(1) of Part C of Direction No 79 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
Paragraph 7(1)(b) of Direction No 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
a)…
b)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.
Further guidance as to how a decision-maker is to apply the considerations in

Direction No 79 can be found in paragraph 8, “Taking the relevant considerations into account”, which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
As noted above, on 28 April 2017, the Applicant was sentenced in the Perth District Court of Western Australia, with respect to 20 criminal offences, to a total term of six years. This included a head sentence of two years and six months for the offence of “sold a prohibited drug namely Methylamphetamine” (page 9 of sentencing remarks of 28 April 2017 in Exhibit A1; S8/17).
Consequently, the Tribunal finds that the Applicant does not pass the character test under ss 501(6)(a) and 501(7)(c) of the Migration Act.
The Tribunal must now consider whether there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community
Paragraph 13.1(1) of Direction No 79 provides that:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle 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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community…
Paragraph 13.1(2) of Direction No 79 then provides:
(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.
Nature and seriousness of the conduct (paragraph 13.1(2)(a) of Direction No 79)
Paragraph 13.1.1(1) of Direction No 79 further provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the

non-citizen’s favour);
i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
The Applicant has committed approximately 28 criminal offences and three driving offences (S8/15-19). These offences comprised:
(a)
“assault public officer”, “disorderly obscene language” and “false name”. The Perth Court of Petty Sessions imposed fines of $640 in total for these offences on

16 December 1991 (S8/19). There is no offence date listed for these offences, but based on the court date, the Applicant would have been approximately 18 years of age at the time of these offences;
(b)On 24 August 1992 the Applicant was convicted in the Supreme Court of Western Australia of two counts of “robbery whilst armed in company”. The Applicant committed these two offences when he was 19 years of age (G6/49). When sentencing the Applicant to a total term of five years imprisonment for these offences, Wallwork J described the facts as follows (G6/45-47):
Mr Sanft, you pleaded guilty to one count; that on 28 December 1991 at [suburb omitted] you stole from [name omitted] with actual violence a sum of money and some liquor, the property of [company name omitted] at [name omitted] Tavern and, at the same time, you are armed with an offensive weapon, namely a rifle and, at the time, you were in company with others.
You pleaded guilty to a second charge of, shortly after that, on 3 January 1992 at Perth you, with [co-offender name omitted], you [sic] co-accused and another man, [co-offender name omitted], stole from [name omitted] with actual violence a sum of money, the property of the Young Men’s Christian Association [YMCA] at Perth … and, at the time, you were each armed with offensive weapons, namely an [sic] rifle and an iron bar and you were in company with one another.
The circumstances concerning the first offence on 28 December 1991 were that on that occasion, Mr Sanft, you were with two other juveniles at 9.30 pm in the evening. You held up a liquor store and you had a 22 rifle. Although it wasn’t cocked, there was ammunition in the magazine. There wasn’t any ammunition in the breach. The rifle was sawn off. On that occasion, you and the others took $1575, together with some liquor, from the liquor shop. You gave the juveniles S125 [sic] each and kept the rest.
With respect to the second offence, your co-accused has already been sentenced by Ipp J. …
When sentencing him for that offence Ipp J said that you, Mr Sanft, had a sawn .22 rifle and it was pulled out of the bag. You knew that you were taking the rifle along. You knew there were bullets in the magazine. The three of you had agreed that no one was going to be hurt and the rifle was not cocked, but there was a substantial risk that if things went wrong it might be used. The offence occurred at 11.15 pm at the front desk… [of the YMCA] and the three of you rushed into the foyer. You, Mr Sanft, were holding the gun and you pointed it at the unfortunate man there. You told him to - move and he was dead. He was told to lie on the floor face down. He was asked to open the till and hand over the key to the safe or else. One of the men was told to hit him, if he didn’t hand over the key, with the iron bar. He was not hit. The till was opened and the money was removed. [Name omitted], your co-accused here this morning, went through the man’s pockets while he was lying on the floor but couldn’t find any money. A lift in the foyer opened and a guest attempted to get out of the lift and he was told to get back and warned not to move. They were the circumstances surrounding that second offence.
(c)On 19 October 1994, the Applicant appeared in the Perth Court of Petty Sessions on the charge of “Att. [attempted] burglary with intent”. The Magistrate imposed a fine of $1,000. There is no statement of material facts, nor any sentencing remarks for this offence. At this time, the Applicant would have been 21 years old.
(d)On 2 August 1995 the Applicant was convicted of “driving under the influence” of alcohol. The date of this offence was 26 July 1995. The Court of Petty Sessions imposed a fine of $700 and disqualified the Applicant’s driver’s licence for a period of six months. The Applicant was 22 years old at the date of this offence.
(e)
The Applicant committed a further driving offence of “unlicensed vehicle” on

26 May 2005. On 1 July 2005 the Magistrates Court imposed a fine of $100. At that time the Applicant was approximately 32 years old.
(f)When the Applicant was approximately 42 years old, on 25 September 2015 he committed the offence of “driving with prescribed illicit drug”. On 11 January 2016, the Magistrates Court imposed a fine of $400.
(g)
On 28 April 2017, the Applicant was sentenced in the Perth District Court of Western Australia with respect to 20 offences. As noted above, 15 of these offences were sent to the District Court from the Magistrate’s Court pursuant to s 32 of the Sentencing Act 1995 (WA). In summary, these offences occurred between

29 August 2015 and 14 July 2016. He received a head sentence of two years and six months for the offence of “sold a prohibited drug namely Methylamphetamine”, and a total term of six years for the 20 offences (page 9 of sentencing remarks of

28 April 2017 in Exhibit A1). The 20 offences can be summarised under their offence dates as follows (S8/15-19):
(i)29 August 2015 – “conspiracy to possess a prohibited drug with intent to sell/supply”. The Applicant was sentenced to a concurrent term of imprisonment of 18 months and was declared a drug trafficker.
(ii)3 September 2015 – “sold a prohibited drug namely Methylamphetamine”. The Applicant was sentenced to a cumulative term of imprisonment of six months and declared a drug trafficker.
(iii)20 October 2015 – “sold a prohibited drug namely Methylamphetamine”. The Applicant was sentenced to a concurrent term of imprisonment of 10 months and declared a drug trafficker.
(iv)29 October 2015 - “sold a prohibited drug namely Methylamphetamine”. The Applicant was sentenced to a head sentence of two years and six months’ imprisonment and declared a drug trafficker.
(v)30 October 2015 – three counts of “unlicensed person possess firearm/ ammunition” for which the Applicant received concurrent terms of imprisonment of eight months, four months and another four months. One count of “possess firearm with circumstances of aggravation” for which he received an eight month concurrent term of imprisonment, and a further count of “person did possess an unlicensed firearm and a prohibited drug” for which he was sentenced to a six month cumulative term of imprisonment and declared a drug trafficker. Also, on 30 October 2015, the Applicant committed the offence of “possession of a prohibited drug with intent to sell or supply (Methylamphetamine)” for which he received a cumulative sentence of imprisonment of two years and six months and was declared a drug trafficker.
(vi)8 December 2015 – two counts of “possessed a prohibited weapon” for which he was sentenced to two month concurrent terms of imprisonment for each offence; and one count of “possess a prohibited drug (Methylamphetamine)” for which he was sentenced to a term of three months concurrent imprisonment and declared a drug trafficker.
(vii)14 July 2016 – “unlicensed possession of dangerous goods” for which he received a two month concurrent term of imprisonment; “unlicensed person possess firearm/ammunition” for which he received a two month concurrent term of imprisonment; “possessed drug paraphernalia in or on which there was a prohibited drug or plant” for which he received a four month concurrent term of imprisonment and was declared a drug trafficker; two counts of “possessed a prohibited weapon” for which he received concurrent terms of two months’ imprisonment for each offence; “possess a prohibited drug (Methylamphetamine)” for which he received a one month concurrent term of imprisonment and was declared a drug trafficker; and “possess a prohibited drug (MDMA)” for which he received a one month concurrent term of imprisonment and was declared a drug trafficker.
The facts of these 20 offences were summarised by the sentencing Judge, Davis DCJ, in her Honour’s sentencing remarks dated 28 April 2017 (in Exhibit A1; G5/34-36) as follows:
Briefly, count 1 [conspiracy to possess a prohibited drug with intent to sell/supply] was committed, as I said, on 29 August 2015 after the police lawfully intercepted telephone communications by your co-offender [name omitted]. You and [the co-offender] along with another offender [name omitted] conspired to possess 14 grams of methylamphetamine. Count 2 [sold a prohibited drug namely methylamphetamine] related to your sale on 3 September of the drug methylamphetamine to an undercover police operative. The drug you sold was 6.48 grams with a purity of 77 and 79 per cent.
Count 3 [sold a prohibited drug namely methylamphetamine] relates to another sale of methylamphetamine to an undercover operative on

29 October 2015. You sold two quantities, each of just under 28 grams. The total was 55.6 g, and the purity was 77 and 78 per cent respectively.
Counts 4 and 5 and some of the section 32 notice offences… were all committed on the same day, 30 October 2015. The charges arise out of what the police found in a search of your car after you were pulled over while driving… Count 4 relates to 36.6 grams of methylamphetamine with the purity of 83 per cent found in the boot lining of the passenger side of your car’s boot.
The firearm, count 5, which was a French-made handgun, another handgun the subject of [another charge], which was found to be loaded with one round in the chamber, and a sawn-off shotgun the subject of [another charge] were found in the same location in the boot along with the drugs. There was also some ammunition found, and that’s the subject of [another charge].
You committed a further offence… on another date, 20 October 2015. This is another occasion where you sold a prohibited drug, methylamphetamine, 4.3 grams. On this occasion you directed another person, [name omitted], to sell it on your behalf.
Three offences… were committed on 8 December 2015. Police carried out a Misuse of Drugs Act search of your home on that day, and these charges relate to the items which were found during that search. Charge [number omitted] relate to your possession of prohibited weapons, and there’s two sets of knuckledusters, a wooden set and metal set, found in your bedroom. Charge [number omitted] relates to possession of methylamphetamine. The total amount was 2.45 grams.
The remaining seven offences, [charge numbers omitted], were all committed on 14 July 2016, and are aggravated by the fact you were on bail at that time for the other offences. These offences all arise out of another Misuse of Drugs Act search conducted by the police of your home. There are two offences of possession of prohibited drug… The first relates to 1 gram - or just under a gram of methylamphetamine, and the second relates to six MDMA or ecstasy tablets.
[Charge number omitted] relates to your possession of three items of drug paraphernalia, a glass smoking implement found on your desk, another found in your cupboard, and seven other glass smoking implements or pipes found in your desk. All of them had detectable traces of methylamphetamine. Charge [number omitted] is another offence of possession of a prohibited weapon. It relates to two electric shock Tasers disguised as torches found in the bedroom of your home.
[Charge number omitted] relates to… two metal knuckledusters and two plastic knuckledusters found. [Charge number omitted] relates to possession of unlicensed ammunition. And this was 10 grams of gunpowder found in your office in a clipseal bag. The final charge… unlicensed possession of dangerous goods, relates to a short length of explosive fuse found in your office.
(h)On 5 May 2017, the Applicant was convicted of “unlawful wounding with a circumstance of aggravation”. This offence occurred on 1 February 2017. The Applicant was sentenced to a concurrent term of imprisonment of four months. This offence was a domestic violence incident committed against the Applicant’s eldest stepdaughter who is now an adult. At the time of this offence, the Applicant’s stepdaughter was aged 17 years. The statement of material facts records the circumstances of this offence as follows (SG10/23):
At about 11.30pm on Wednesday 1 February 2017 the victim and the accused were at their home address…
The victim was at the front of the address performing work on her motor vehicle when she heard the accused arguing with her Mother, who was also inside the house. The victim went inside to pack personal items, in an attempt to leave the address.
The victim and the accused were located near the kitchen area within the house and become [sic] involved in a verbal argument, at the time of the argument the accused was holding a metal mag torch light, about 30cm in length.
The accused without warning, struck the victim to the left side of her forehead with the mag torch light, causing her to fall to the ground and suffer immediate pain.
The victim put her head into her hands to hold her head due to the pain suffered and noticed she was bleeding heavily from the forehead.
Police arrived a short time later and located the accused within the house. The accused was arrested and conveyed to the [suburb omitted] Police Station, where he declined to participate in a [sic] Electronic Record Of Interview.
The victim was conveyed to the [suburb name omitted] Hospital where she received four stitches to her head.
(i)On 27 November 2017 the Applicant was convicted of “possessed drug paraphernalia in or on which there was a prohibited drug or plant”. This offence was committed on 13 December 2016 and the Applicant received a fine of $200.

Paragraph 13.1.1(1)(a) of Direction No 79 provides that “without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously”. Accordingly, the Tribunal finds that the Applicant’s offence of “unlawful wounding with a circumstance of aggravation” against his stepdaughter, who was 17 years of age at the time, should be viewed very seriously. The Tribunal also regards the Applicant’s offence of “assault public officer”, which by his own admission involved punching a police officer in the head (transcript/24), as being very serious.
Paragraph 13.1.1(1)(a) of Direction No 79 does not limit the range of offences that may be considered serious. The Tribunal has previously recognised the harmful effects of drugs on the community (see, for example, Senior Member Cameron in SCJD and Minister for Home Affairs [2018] AATA 4020 (SCJD) at [81]-[83]). These harms will be discussed in further detail below. Given the serious and detrimental effect of the drug trade on the Australian community, the Tribunal finds that the Applicant’s drug offences, for which he was declared a drug trafficker, should also be regarded as serious.
The Tribunal has often viewed offences such as driving under the influence (of drugs or alcohol) and unlicensed driving as being serious because the unlicensed and/or irresponsible use of a motor vehicle can endanger innocent road users (see for example, Member Webb, in Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [16]; Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [43]-[45]; Morris and Minister for Immigration and Border Protection [2018] AATA 3374 at [65]-[66], and Senior Member Bell in Wang and Minister for Immigration and Border Protection [2014] AATA 89 at [7]). The Tribunal regards the Applicant’s offences of “driving under the influence” (1995) and “driving with prescribed illicit drug” (2016) to be serious because these types of offences can endanger the lives of innocent road users.
The Tribunal also regards the Applicant’s two “robbery whilst armed in company” offences as being very serious. This is because both offences were robberies with a sawn off rifle and with the robbery of the YMCA offence, the sentencing judge observed that “there were bullets in the magazine” and that “there was a substantial risk that if things went wrong it might be used” (G6/47), potentially causing the victim physical injury or loss of life. The Sentencing Judge also observed that, “these offences are terrifying experiences for the people who have guns pointed at them” (G6/47).
Paragraph 13.1.1(1)(b) of Direction No 79 provides that violent offences against women or children are viewed very seriously, regardless of the sentence imposed. This applies to the offence of “unlawful wounding with a circumstance of aggravation” against his stepdaughter, who was 17 years of age at the time.
Paragraph 13.1.1(1)(c) of Direction No 79 provides that crimes committed against vulnerable members of the community, or government representatives or officials in the performance of their duties are “serious”. Although children are not referred to as examples of vulnerable members of the community in this sub-paragraph, children are clearly “vulnerable members of the community”. There is a substantial power imbalance between adults and children, with adults occupying a position of trust, authority, knowledge and often physical strength over children. Indeed, many laws, including the criminal law, operate to protect children who are generally accepted as requiring protection. Consequently, the Tribunal finds that children are vulnerable members of the community, and that the “unlawful wounding with a circumstance of aggravation” against his 17-year-old stepdaughter falls within this category. So too does the “assault public officer” offence which was an offence against a police officer in the performance of their duties.
Paragraph 13.1.1(1)(d) of Direction No 79 also requires the Tribunal to have regard to the sentences imposed by the Courts for a crime or crimes. As noted above, the Applicant has received two significant sentences of imprisonment. The first was the five-year term of imprisonment in 1992 when the Applicant was sentenced to a total term of imprisonment for five years for the two counts of “robbery whilst armed in company”. The second was the total term of imprisonment for six years which the Applicant was sentenced to on

28 April 2017 for the 20 offences which included drug offences and for which he was declared a drug trafficker. Imprisonment is generally a last resort and the Tribunal finds that these two significant periods of imprisonment are indicative of the serious nature of the Applicant’s offending. Additionally, the sentencing judge’s remarks on 28 April 2017 refer to the serious nature of the five indictable drug offences committed by the Applicant, stating that “[t]hese are all serious offences” (in Exhibit A1, page 2 of sentencing remarks). The Tribunal finds that these sentences of imprisonment reflect the seriousness of the Applicant’s offending.
The Tribunal is also required to consider the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness (paragraph 13.1.1(1)(e) of Direction No 79). As was outlined above, the Applicant committed his first offences, which included the “assault public officer offence”, when he was approximately 18 years of age. His “robbery whilst armed in company” offences were both committed when he was 19 years of age, and his “attempted burglary with intent” offence was committed when he was 21 years of age. The “driving under the influence” offence was committed when he was 22 years of age. There was then a gap in the Applicant’s offending of approximately 10 years until he committed the “unlicensed vehicle” offence in 2005 when he was approximately 32 years of age. There was a further gap in the Applicant’s offending for another period of approximately 10 years until 29 August 2015 when the Applicant committed the offence of “conspiracy to possess a prohibited drug with intent to sell/supply”. At that time the Applicant was approximately 42 years of age. From that time, the Applicant’s offences could be regarded as frequent. Specifically, between 29 August 2015 and 1 February 2017, the Applicant committed 22 offences. Overall, the Tribunal is not of the opinion that there is an overall trend of increasing seriousness. This is because serious offences were committed by the Applicant in 1991 and 1992, specifically the “assault public officer” and two counts of “robbery whilst armed in company” offences. He then committed less serious burglary and traffic offences between 1994 and 2015. This was followed by the 22 further offences which included drug offences for which the Applicant was declared a drug trafficker and the unlawful wounding offence against his 17-year-old stepdaughter in February 2017, which are serious offences. These offences also included numerous weapons possession offences which included the possession of knuckle dusters, tasers and ammunition.
With respect to the cumulative effect of repeated offending (paragraph 13.1.1(1)(f) of Direction No 79), the Applicant’s court history comprises approximately 28 criminal offences and three driving offences, numerous fines, driving suspensions and two custodial sentences of imprisonment. These would likely have had a cumulative effect of placing a burden on the resources of police, corrective services, and the court system.
The Applicant has not provided false or misleading information to the Department by not disclosing prior criminal offending on any incoming passenger cards and so paragraph 13.1.1(1)(g) of Direction No 79 is not applicable.
The Applicant has not previously received any formal written warning that further offending may affect his migration status, and so paragraph 13.1.1(1)(h) of Direction No 79 is not applicable.
Paragraph 13.1.1(1)(i) of Direction No 79 requires the Tribunal to consider whether the Applicant has committed any crime while in prison or immigration detention, for example during an escape from immigration detention. This is not applicable to the Applicant.
Based on the analysis of each of the sub-paragraphs of paragraph 13.1.1(1) of Direction No 79 above, the Tribunal finds that the nature and seriousness of the Applicant’s offences involving violence, namely his “assault public officer” and “unlawful wounding with a circumstance of aggravation” are very serious. The Applicant’s drug offences for which he was declared a drug trafficker are also serious, as were his two “robbery whilst armed in company” offences committed in 1992. Some of the Applicant’s other offences are less serious than these previously stated offences, including his driving and weapons offences, however, they are still serious because driving offences can endanger innocent road users and the possession of weapons makes them available for use which could result in serious injury. Consequently, the Tribunal finds that paragraph 13.1.1 of Direction No 79 weighs strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1(2)(b) of Direction No 79)
A decision-maker must also have regard to the following principle, described in paragraph 13.1.2(1) of Direction No 79 as follows:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm
Broadly speaking, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. This firstly requires a consideration of the nature of the harm should the Applicant engage in further criminal or serious conduct (paragraph 13.1.2(1)(a) of Direction No 79).
The harm that could result to victims if the Applicant is to reoffend in a violent manner, including if he were to commit any domestic violence offences, is potentially very serious and could include psychological harm, physical injury, temporary or permanent impairment or even loss of life. Weapons possession offences, or the use of weapons in offences such as armed robbery, can also lead to very serious harms of a similar nature to other violent offending.
Should the Applicant commit further driving offences, members of the public (including innocent road users and pedestrians) could also suffer physical injuries or loss of life,

and possible psychological harm.
In SCJD and Minister for Home Affairs [2018] AATA 4020 (SCJD) Senior Member Cameron, at [81]-[83], outlined the harms that can result from drug trafficking:
81.The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person’s drug dependency. There is a massive toll on the nation’s mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.
82.In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.
83.There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.
Likelihood of engaging in further criminal or other conduct
Next, the Tribunal is required to consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community (paragraph 13.1.2(1)(b) of Direction

No 79).
In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359, 389 [111] (which was quoted with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424, 444-445 [95], as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117,
124–5 [42]-[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be.
Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality, but also on the seriousness of the consequences if it does.
(Footnotes omitted.)
In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] Moshinsky J stated that: “…there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational”. Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] Kenny J also referred to the basis for the assessment of the likelihood of reoffending as requiring a “rational and probative basis”.
The Applicant’s criminal history does not show a consistent pattern of offending over the years. He committed his first offences when he was approximately 18 years of age, committed the two counts of the serious offence of “robbery whilst armed in company” when he was approximately 19 years of age and committed the “attempted burglary with intent” offence when he was on parole for the “robbery whilst armed in company” offences as a

21-year-old. He then committed the offence of “driving under the influence” when he was 22 years old. During his first prison term for the “robbery whilst armed in company” offences, the Applicant attended Alcoholics Anonymous and Narcotics Anonymous in prison. He estimated that he attended these programs for “a couple of months” twice a week. He also described attending a residential rehabilitation upon his release from prison as part of his parole conditions. Although there was no corroborating evidence that the Applicant attended these programs, the Tribunal is prepared to accept that he did, given that the Tribunal found the Applicant to be an honest and forthright witness. Additionally, his attendance at these programs may explain why there was a gap in his offending for approximately 10 years until he committed a driving offence of “unlicensed vehicle” in 2005. There was then a further gap in the Applicant’s offending for another period of approximately 10 years until

25 September 2015 when the Applicant committed the offence of “driving with prescribed illicit drug”. This comprises a period of approximately 20 years with no criminal offending. Such a lengthy period without offending shows that the Applicant is capable of remaining offence free in the community.
When asked about the facts and details about his offending at the Tribunal hearing, the Applicant accepted the facts found by the courts and contained within the statements of material facts that were put to him. The Applicant did not attempt to excuse or to minimise his offending. This included accepting the facts of the very serious “unlawful wounding with a circumstance of aggravation” offence committed against his 17-year-old stepdaughter. He was also candid when sharing the details of early offences where statements of material facts and sentencing remarks were not before the Tribunal, even when those facts were to his detriment. For example, the Applicant volunteered that the 1991 “assault public officer” offence involved him punching a police officer in the head. This acceptance of responsibility shows an insight into the Applicant’s offending, which may assist him not to reoffend.
When asked by the Tribunal about why the Applicant thought he was able to remain offence free in the period between 2005 through to 2016, the Applicant stated that he had a position of responsibility as a supervisor at his workplace and that “[a]ll I wanted to do was climb the ladder at work” and that he was very driven to succeed with his career (transcript/32). The Applicant described relapsing to methylamphetamine use in 2014 when he went to a party where a lot of people were using drugs. He had not been in a relationship for approximately 12 years and thought that if he partook in drug use with the other attendees at the party he may have a chance of having casual sex with some of the women at the party (transcript/34; 39). His evidence was that at first, he only used drugs between one to three times per month, however from the beginning of 2015 his drug use escalated to “at least every couple of days” (transcript/32). The Applicant’s evidence was that he used up his savings to pay for his methylamphetamine habit. He also sold three cars he owned and refinanced his mortgage for approximately $30,000 to pay for his methylamphetamine addiction. He stated that by the end of October 2015 his habit cost him approximately $2000 per day (transcript/32-33). The Applicant confirmed that he ended up selling methylamphetamine to fund his own addiction (transcript/34).
In the sentencing remarks from 28 April 2017, Davis DCJ, stated (Exhibit A1, pages 6-7):
You’ve also clearly accepted responsibility for your actions. You’re now experiencing the consequences of your actions, having lost your job and your good standing in the community. You’ve now recognised the impacts of methylamphetamine use in the community, something you admit you did not think of at the time of all of your offending.
In terms of your risk of reoffending, you told the author of the pre-sentence report that you recognise these offences occurred because of your methylamphetamine use and your association with negative peers. You’ve said you do not wish to have anything to do with your co-offenders or co-accused or anyone else using drugs. The author of the pre-sentence report says unless you address your needs in relation to methylamphetamine dependence you are at risk of reoffending in a similar manner.
On 20 June 2017, shortly after the Applicant commenced his most recent prison term, he was assessed by prison assessors as being “not recommended for criminogenic programs at this time due to his low risk of re-offending” (page 2 of Individual Management Plan in Exhibit A1).
Despite this assessment, the Applicant attempted to access programs. This is confirmed by a note from the Applicant’s Case Management Coordinator which states that on

22 December 2017 the Applicant requested to be placed on the next general offending course but was told that he was assessed as not requiring programs. The note also recorded that on 15 January 2018 an enquiry was made as to whether the Applicant could volunteer to do an unspecified course but was advised that he could try to seek counselling or a program via centre care instead.

A further note states on 21 August 2020 an email was sent to the clinical reassessment team requesting a reassessment, but a recommendation was received to apply for an alcohol and drug program at Casuarina Prison. A further note records that on

3 September 2020 the Applicant attempted to self-refer to the alcohol and drug program at Casuarina Prison. A copy of this self-referral form dated 28 August 2020 was also before the Tribunal, as well as a copy of the form requesting a transfer to Casuarina Prison. The Applicant stated that he recently had an interview to determine his eligibility for this course (transcript/36). When asked about whether he would apply for parole, the Applicant stated (transcript/57):
Well, I was planning on doing the Solid Steps Recovery Program first, and that’s actually a nine-month course, so it would take me over when I was eligible for parole… But once I’ve completed that course, if I was allowed to remain in the country, I would certainly apply for parole after that.
When asked by the Tribunal why he made attempts to access courses despite being assessed as not requiring programs due to being at a low risk of reoffending, the Applicant stated that after many years of no offending and no drug use:
…when I relapsed and destroyed everything that I’ve worked for for the 20-odd years that I was out I was so disappointed and angry that I had allowed myself to fall into the same trap that had happened before.
The Applicant’s evidence was that he was recently able to complete a course called the HOPE Community Good Ways Relapse Prevention Program, which was a course about addiction and relapse which he stated consisted of six sessions of approximately three hours each held over a six-week period. He was able to articulate what he had learnt about the stages of addiction, and about himself after completing this course (transcript/37-38). Unfortunately, there is no treatment report which details any treatment gains made by the Applicant as a result of completing this course.
The Applicant described his motivation not to relapse to drug use again (transcript/39):
Now that I’m in a stable relationship and have been for the last few years I’ve got to say, I mean, my partner and the step-kids and my kids now are more than willing and able to pull me up at the slightest bit of wrongdoing. I don’t want to lose what I’ve got. I’ve got - there’s too much to repair from what I’ve lost over the last 20 years. I’m 47 years old. I’m going to be 50 by the time I’m eligible for parole. Sorry, I’m going to be 48 by the time I’m eligible for parole, which puts me at nearly 50. I’m too far along in my life to have nothing again. I’ve got a limited amount of time to take care of the kids. Like, my (indistinct), my mother, all these things, and I’m doing it from two steps behind - or, ten steps behind, really - from where I was.
Additionally, the Tribunal notes that the Applicant’s prison sentence commenced on

7 April 2017 and there is no record of the Applicant using any drugs whilst he has been in prison. This period of abstinence, together with his completion of the HOPE Community Good Ways Relapse Prevention Program, is likely to assist him to refrain from drug use if he is released into the Australian community.
The Applicant was also able to describe his motivators not to use drugs or to reoffend in the future including pro-social support from his family, his resolve not to use drugs again together with drug rehabilitation, and his fear of deportation (transcript/92-93):
My family believe that if I’m allowed to remain in Australia, I will never use drugs again, I believe that and so do they. I hope with the evidence that I’ve put forward, with the Good Ways program and the Solid Steps, I have a plan to combat any drugs in the future.
So I can, at least in my mind, cut that out altogether. I have the love of a good woman, children and stepchildren who are willing and able to pull me up on anything they perceive as wrong and a constant fear of being sent to, what amounts to me, as a foreign country. Penniless and alone without financial, emotional, social and even medical support.
I am hoping with the evidence that I have presented and with this closing statement, you will come to believe, as my family and I believe, I am not a career criminal. And that drugs were at the core of my offending and that I will never intentionally or knowingly do anything remotely illegal again.
The Applicant commenced a relationship with his partner in early 2015 and they moved in together in January 2016. Therefore, 13 of the offences the Applicant was convicted of on 28 April 2017 were committed prior to his moving in with his partner. The seven offences that the Applicant committed on 14 July 2016 occurred after they commenced living together. He described that his partner tried to help him cease methylamphetamine altogether, that she made sure he was sleeping and eating properly, and that he was able to reduce the amount of methylamphetamine he was taking down to $100 per day. In her evidence the Applicant’s partner stated, “I’m there in anyway to support him no matter what, to push him to do what he has to, to keep on the right track. And my kids they are the same, they are willing to do just as much.” (transcript/74). The Tribunal finds that the Applicant’s partner and stepchildren are likely to be a positive influence on him and their support is likely to be a motivation for him to abstain from drug use and not to reoffend.
Given the serious nature of the offence against his stepdaughter when she was 17 years of age, the Tribunal was very concerned about the likelihood of any such offending occurring again. The Tribunal notes that this is the only domestic violence incident on the Applicant’s record. There is no evidence of any police callouts, complaints, or police orders for domestic violence incidents. Nor have there been any violence restraining orders, or breaches of such. The Tribunal also asked the Applicant’s partner if the Applicant had ever been violent towards her, and her evidence was “never” (transcript/74). The Tribunal also asked the Applicant’s adult stepdaughter, about whether the Applicant had ever been violent towards her mother, to which she stated “no” (transcript/80). Additionally, the Tribunal notes that apart from the “assault public officer offence” approximately 29 years ago in 1991, there are no other offences involving violence, such as assaults, on the Applicant’s criminal history. The 1992 “robbery whilst armed in company” offences did involve threats of violence, however, this offence occurred approximately 28 years ago. The Tribunal is satisfied that there is minimal to no likelihood of the Applicant committing any further violent offending in the future. In the Tribunal’s opinion, the Applicant’s main risk factor that is relevant to any future re-offending is his methylamphetamine use, which could lead to further drug related offending of the types considered by the Perth District Court of Western Australia on 28 April 2017.
The Applicant plans to seek employment. His employment history and volunteer work (which include positions of trust and responsibility) may assist him to find employment, which may be a protective factor for him. Indeed, the Tribunal notes the Applicant’s evidence that during the ten-year period between 2005 and 2015 when he did not offend, he was focused on progressing his career in management. He has not actively sought employment because he was unsure if he would be able to remain in Australia (transcript/53). The Applicant’s partner also stated that the Applicant wanted to look for work straight away (transcript/74) when he is released. The Applicant and his partner have also discussed moving to Victoria to help care for his elderly mother. This would also be a meaningful and pro-social use of the Applicant’s time that may help motivate him not to relapse to drug use or to re-offend.
The Applicant’s maximum sentence is until 6 April 2023, and his earliest eligibility date for parole is 6 April 2021. The Applicant’s plan is to complete the Solid Steps Program prior to his parole if he is accepted into the program. As noted above, the Applicant’s evidence was that he would like to defer applying for parole so he can complete the program. If the Applicant is granted parole, the supervision, programs and reporting requirements are likely to assist him to reintegrate into the community and to abstain from drug use, which may reduce his likelihood of reoffending. The Applicant has not, however, been considered for parole yet, and whether he will be granted parole is uncertain.
In summary, the factors above which may suggest a likelihood of reoffending include:
·the Applicant committing the offence of “burglary with intent” in approximately 1994 whilst he was on parole for the two “robbery whilst armed in company” offences committed in approximately 1992. The Applicant attended residential rehabilitation as part of his parole conditions, but later relapsed to drug use in 2015;
·the number of offences committed by the Applicant, comprising 28 criminal offences and three driving offences in total;
·the number of offences committed between 29 August 2015 and 14 July 2016, including serious drug offences for which he was declared a drug trafficker;
·the Applicant’s treatment gains and likelihood of re-offending not being formally assessed or measured following his completion of voluntary programs;
·the fact that the Applicant has had support from his mother in the past, and yet reoffended. He also had the support of his partner who moved in with him in January 2016, however, he committed seven offences after he commenced living with her;
·the apparent ease with which the Applicant relapsed to methylamphetamine use after attending a party where drugs and the prospect of casual sex were on offer; and
·although there is no evidence of any drug use by the Applicant in prison, the fact that the ability of the Applicant to refrain from drug use in the community is untested.
On the other hand, many of the other factors discussed above suggest that the Applicant is a low risk of reoffending. These include:
·the Applicant’s breach of parole by reoffending was committed approximately 26 years ago;
·the formal prison assessment which concluded that he was a low risk of reoffending, and therefore not required to complete any intensive treatment programs;
·his acceptance of responsibility for his offending;
·his motivation and willingness to change, including seeking out voluntary programs despite being assessed as a low risk of re-offending, and his stated intention to delay applying for parole to complete an additional alcohol and drug program;
·the two gaps in his offending of 10 years each which were both broken by driving offences. If the driving offences are put aside, there is a 20-year gap where there is no criminal offending by the Applicant. In the Tribunal’s opinion, this shows that he can lead a pro-social life in the community. Additionally, his employment and volunteering history demonstrate that he can occupy positions of responsibility in the community;
·at the time the Applicant met his partner he had not been in a serious relationship for 12 years. When the Applicant moved in with his partner in January 2016, he was able to reduce his drug use from a $2000 per day habit down to a $100 per day habit. As well as having the support of his pro-social partner, the Applicant also has the support of his adult stepdaughter and 17-year-old stepdaughter;
·his desire to be a part of his stepchildren’s lives, including his eight-year-old stepson, to provide for them and to care for his elderly mother who has recently experienced some health issues;
·his resolve to abstain from drug use, including his abstinence from drugs in prison, his insight and appreciation into what he has lost due to his drug use including his house and his career, and the fear of deportation.
After weighing the above factors, the Tribunal finds that, on the balance of probabilities, there is a low likelihood of the Applicant reoffending should he be given a further chance to be released back into the Australian community.
Taking into account the nature of the harm if the Applicant commits further offences, which could be serious, together with the low likelihood of the Applicant reoffending, on balance, the Tribunal finds that the “risk to the Australian community” part of this primary consideration (that is, paragraph 13.1.2 of Direction No 79) most appropriately weighs slightly against the revocation of the Cancellation Decision.
Summary on paragraph 13.1 of Direction No 79
In summary, the Tribunal has found that the “nature and seriousness of the conduct” part of this primary consideration (that is, paragraph 13.1.1 of Direction No 79) weighs strongly against the revocation of the Cancellation Decision, and the “risk to the Australian community” (that is, paragraph 13.1.2 of Direction No 79) weighs slightly against the revocation of the Cancellation Decision. Overall, the Tribunal finds that the first primary consideration weighs moderately against the revocation of the Cancellation Decision.
Second primary consideration: The best interests of minor children in Australia (paragraph 13.2 of Direction No 79)
Paragraph 13.2 of Direction No 79 provides, in part:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 13.2(4) of Direction No 79 continues to outline the factors that a

decision-maker must consider when determining the best interests of a child:
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There are four minor relevant children: the Applicant’s 17 year old stepdaughter; the Applicant’s eight-year-old stepson, the Applicant’s step granddaughter who is almost one years old, and the Applicant’s biological grandson born in approximately late 2019.
17-year-old stepdaughter
Paragraph 13.2(4)(a) of Direction No 79 requires the Tribunal to consider the nature and duration of the relationship between the child and the Applicant. The Applicant’s stepdaughter, C, is the middle child of his partner. Although the Applicant is not the biological father of C, he has been a part of her life since approximately 2015 when he commenced a relationship with her mother. C has now left school and is working part time. She still lives at home with the Applicant’s partner (transcript/83). The Applicant’s partner stated that the Applicant had been more of a father figure to C than her own father (transcript/71-72), as did C who also wrote a letter in support of her step father (in Exhibit A1), and gave evidence at the hearing (transcript/82). C’s evidence was that she does not have a relationship with her own father (transcript/82). C’s evidence was that she speaks on the phone with the Applicant approximately three times per week. Prison visitor records also show that C visited the Applicant with her mother and sometimes her younger brother, A, in prison between 16 May 2018 and 23 March 2020 (S17/51-74). Even though the Applicant is the stepfather of C, the Tribunal finds that they have a close relationship and that the Applicant is a father figure to C.
C will turn 18 in approximately three months from the time of the hearing. The Applicant’s earliest eligibility date for parole consideration is 6 April 2021, and so C will turn 18 before the Applicant’s release from prison. The evidence before the Tribunal suggests that the Applicant has been more involved with C than her biological father who has moved to
New Zealand and started another family, according to the evidence of the Applicant (transcript/50). The Applicant’s partner also confirmed that C’s father is in New Zealand (transcript/72). C also described that the Applicant taught her how to drive, helped with her schooling and would give her advice (transcript/82). Although C is nearly an adult, the Applicant is nevertheless likely to continue to be a positive role model to C until she turns 18 (Direction No 79, paragraph 13.2(4)(b)).
Regarding the Applicant’s ability to be a positive role model in the future, at the hearing the Applicant was asked about having drugs and weapons in the house when his stepchildren were residing there. The Applicant’s evidence was that these items were in a locked bedroom and study, as well as a safe, and were not accessible to the children (transcript/50). The Applicant’s partner also confirmed this in her evidence (transcript/76). The following exchange is relevant (transcript/51):
MS SAUNDERS: Mr Sanft, what I put to you is that having your children and your stepchildren in the house with these items would suggest that you had a disregard for the responsibility for being a caregiver for these children in a house in which they lived over a prolonged period of time. Do you want to say anything in response to that?
APPLICANT: While in the grips of addiction, obviously, you don’t think of things like that. At that stage, having them locked away in locked rooms that they couldn’t get into and didn’t have keys to, in my mind, at the time which I now see is wrong, was enough to make sure that they were safe from any contact with those things.
SENIOR MEMBER: It could have been quite bad though, couldn’t it, like if A had come across a gun or something like, or a taser or something?
APPLICANT: There weren’t any guns found… It was – there was ammunition and bullets, but there was no guns. I wouldn’t have had any guns on the property with the kids there. The tasers were bad enough, but as a precaution the batteries had been taken out and everything.…
MS SAUNDERS: But equally I think it could be said it would be quite bad if the children came across any of the drugs as well?
APPLICANT: It would have been quite bad if they had have come across any of the drugs, but that was the whole reason of (indistinct) in the office or the bedroom safe. Everything had to be locked away. It’s not much of – really of an answer, but I was trying to have some sort of safe guard there, either putting them behind locked doors or putting it inside of a safe.

For a comprehensive summary of the Full Court’s decision in FYBR (FC), see Member Burford in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424, [162]-[171].
Having regard to the judgments of Stewart and Charlesworth JJ in FYBR (FC),
the Tribunal must give effect to the norm stipulated in paragraph 13.3 of Direction No 79 (that the Australian community expects non-citizens to obey Australian laws whilst in Australia), which will, in most cases, weigh in favour of refusing to revoke a cancellation decision.
The Tribunal is guided by the principle in paragraph 6.3(2) of Direction No 79 which states that “[t]he Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere”. Paragraph 6.3(3) of Direction No 79, in summary, provides that non-citizens who have committed serious crimes, including crimes of a violent or sexual nature, should generally expect to be denied the privilege of staying in Australia. In 2017, the Applicant was convicted of a violent offence involving his then 17-year-old stepdaughter, who is a vulnerable member of the community. As discussed above, the Tribunal found this offence to be very serious. The Tribunal also found that the Applicant had committed other offences that should be viewed as serious. These included the offences of “assault public officer” (1991), two counts of “robbery whilst armed in company” (1992) and the indictable drug offences (2015 and 2016) for which he was declared a drug trafficker. The construction of paragraph 13.3 of Direction No 79 as confirmed in FYBR (FC), together with these guiding principles, supports the conclusion that the Australian community would expect the Applicant’s Visa to remain cancelled, and consequently, that the Cancellation Decision should not be revoked.
The Tribunal will discuss the weight to be given to this consideration at the conclusion of these reasons for decision as part of the overall weighing exercise.
OTHER CONSIDERATIONS
Paragraph 14 of Direction No 79 provides:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
International non-refoulement obligations
The Tribunal is required to consider whether Australia’s international non-refoulement obligations (paragraph 14.1 of Direction No 79) arise on any of the submissions, materials or evidence before the Tribunal.
In his personal circumstances form, in response to the question, “Do you have any concerns or fears about what would happen to you if you were to return to your country of citizenship?”. One of the answers listed was, “safety due to the prevalent gang culture there” (G9/69).
However, when asked by the Tribunal the Applicant agreed that the types of risks he had articulated were also faced by other members of the community. Additionally, the Tribunal observes that there is no corroborative evidence to support this claim.
Consequently, the Tribunal cannot conclude that Australia’s non-refoulement obligations are engaged and regards this consideration as being neutral.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No 79 provides that the Tribunal is to consider:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of
non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Relevantly, paragraph 6.3(5) of the principles section of Direction No 79 states:
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
Further, paragraph 6.3(7) of the principles section of Direction No 79 states:
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
The Applicant arrived in Australia as a young child, which is indicative of his strong ties to Australia. Specifically, the Applicant has resided in Australia for approximately 43 years, having arrived here when he was approximately four years of age with his mother. Between 1982 and 1988, when he was between nine years of age and 15 years of age, the Applicant returned to New Zealand on several occasions for holidays and schooling (G2/19; S1/1), but he has not returned to New Zealand as an adult. He regards himself as being Australian and Australia as being his home.
Offence dates have not been included in the record of the Applicant’s History for Court – Criminal and Traffic until 1995 (see S8/19). However, as he was sentenced on 16 December 1991 for his first three offences, his offending was likely to have started in approximately November or early December 1991 when he was approximately 18 years of age. It therefore cannot be concluded that the Applicant started offending shortly after arriving in Australia.
The Applicant has also made some positive contributions to the Australian community through employment and volunteering. He has had many jobs including making rain water tanks and working in a bumper repair shop, as a sales representative whilst working as a barman at night, as an assistant director, as a labourer with a mining company, as a delivery person, as a fire alarm and equipment technician, as a long haul freight driver and as an operational supervisor. Some of these roles were trusted management positions, as was his role servicing alarms and fire equipment in premises such as banks. As part of his role at the mining company where he was working as a labourer, the Applicant undertook voluntary work with the fire and rescue team. He was also a taekwondo instructor and assistant coach from 1998 to 1999, and from 2003 to 2010. The Applicant’s evidence was that this voluntary role involved substantial trust and responsibility because it involved him coaching young children and taking them to interstate competitions. The Applicant’s evidence was that prior to travelling with the children, he informed their parents that he has criminal convictions, and yet they were willing for him to travel with their children. The Applicant was also a volunteer ambulance driver in approximately 1997 to 1999 (transcript/53-57).
The Applicant’s relatives in New Zealand are an elderly aunt who has dementia, and an uncle who has returned to New Zealand to live with and look after her. He stated he may have a cousin in New Zealand who was living in Australia and who he assumes has returned to New Zealand, however his evidence at the hearing was that he is not in contact with this cousin. The Applicant does not have any friends in New Zealand.
The Applicant’s partner lives in Australia. Her evidence was that they have been in a relationship since December 2014. The evidence from the Applicant’s partner was that, “I would like to stress the difficulties my family would have if Shelton isn’t aloud [sic] to stay as he is the main support for us all (financially and emotionally)” (letter dated 6 September 2020 in Exhibit A1). In her evidence at the hearing, the Applicant’s partner stated that he was the main bread winner and that she was currently struggling because she was reliant on social security benefits to support herself and the children (transcript/70). The Applicant’s partner stated that he was there for her children more than their actual fathers were. The Applicant’s partner stated that he helped teach her 17-year-old daughter how to drive, helped with her schooling and provided emotional support to her. She similarly described this level of support that the Applicant gives to her eight-year-old son. Her evidence was that the Applicant had been in their lives for so many years that it would be devastating to the children if he were to return to New Zealand.
The Applicant’s partner also has a granddaughter who is the child of her adult daughter. This daughter is the victim of the Applicant’s domestic violence offence which was committed on 1 February 2017 (S10/23). However, the Applicant’s partner’s evidence was that he has a good relationship with this daughter. This daughter’s evidence was that the Applicant had always been there for her, and she confirmed that he taught her to drive. In her written statement (in Exhibit A1) she said that:
I am one of many that want to be here to support Shelton when he is released. He is a real father figure to my little brother and sister, and myself.
The Applicant’s mother lives in Victoria, Australia. In a letter to the Tribunal dated

25 August 2020, the Applicant’s mother stated:
two years ago I was diagnosed with liver cancer and underwent an operation to have the right side removed. I need Shelton here with me in the event cancer rears its ugly head again.
The Applicant and his partner have discussed moving to Victoria to help look after the Applicant’s mother, given her health issues.
The Applicant also has a grown-up daughter and grandson in New South Wales. In his evidence the Applicant described having a more strained relationship with his daughter who he stated was upset that he was in jail. He stated that they used to be close but since his most recent incarceration their relationship has become more distant. They last spoke approximately five to six months ago on the telephone and he did not ask her for a statement in support of revocation of the cancellation decision because when he last tried to telephone her, her telephone was disconnected.
The Tribunal finds that if the Applicant were removed to New Zealand, it would have a detrimental emotional impact on his mother, who will also lose the opportunity for her son to move to Victoria to help care for her. The Tribunal further finds that the Applicant’s partner will suffer emotional and financial detriment if he is returned to New Zealand because the Applicant has been the main breadwinner in the family, she is struggling with the care of the children herself and is currently reliant on social security. His stepchildren, particularly the 17-year-old and eight-year-old, but also his adult stepdaughter, will be detrimentally affected by his removal because the Applicant has been the main father figure in their lives. The Tribunal refers to its discussion above regarding the best interests of relevant children in this regard. The Applicant’s daughter in New South Wales and her son (the Applicant’s grandson) are less likely to be affected because they appear not to have a current relationship with the Applicant. The Applicant’s step granddaughter may also be detrimentally affected if he is returned to New Zealand because she will not have her step grandfather in her life, but the effect will be of a lesser extent than the other children given that she has her grandmother (the Applicant’s partner), her mother (the Applicant’s stepdaughter) and her father to care for her.
The Applicant has resided in Australia for approximately 43 years, having arrived in Australia at approximately four years of age. This is a lengthy and significant period, given that the Applicant has spent most of his life in Australia. The Applicant did not start offending shortly after arriving in Australia and has made positive contributions to the community. The Applicant’s partner and 17-year-old and eight-year-old stepchildren reside in Australia, and they are likely to suffer emotional and financial detriment if he is removed to New Zealand. He also has support of his adult stepdaughter who is the mother of his step granddaughter. The Tribunal has also found above that the Applicant’s mother, who wants him to remain in Australia, will also suffer emotional detriment if he is returned to New Zealand. Overall, the Tribunal finds that this consideration weighs strongly in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 14.3(1) of Direction No 79 provides that the Tribunal is to consider the:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before the Tribunal.
Impact on victims
Paragraph 14.4(1) of Direction No 79 provides that the Tribunal is to consider the:
Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
As noted above, the Applicant’s adult stepdaughter was the victim of the “unlawful wounding with a circumstance of aggravation” offence, which the Applicant committed against her on 1 February 2017 (S10/23). As noted above, she gave evidence to the Tribunal in the form of a written statement, as well as oral evidence at the hearing, that she wants the Applicant to stay in Australia and that he has been “a real father figure” to herself and her younger siblings. When asked about this domestic violence incident at the hearing, the Applicant’s adult stepdaughter stated that the incident was based on a misunderstanding and that she had intervened when the Applicant was fighting with her mother. She stated that she has overcome any difficulties with him and that despite the incident, she has had a good relationship with the Applicant who has been a father figure to her and has taught her how to drive. Given her wish for the Applicant to stay in Australia and his role as a father figure to her, the Tribunal finds that the impact of a decision not to revoke the Cancellation Decision on the Applicant’s adult stepdaughter would be detrimental to her.
This consideration also requires the Tribunal to consider the impact of a decision not to revoke on the family members of the victim. As noted above, the Tribunal has already concluded that the Applicant’s partner (who is the mother of his adult stepdaughter), as well as the Applicant’s 17-year-old and eight-year-old stepchildren (who are the siblings of his adult stepdaughter) would be detrimentally affected if the Applicant were returned to New Zealand.
The Tribunal finds that this consideration weighs slightly in favour of the revocation of the Cancellation Decision.
Extent of impediments if removed
Paragraph 14.5(1) of Direction No 79 provides that the Tribunal is to consider:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
The Applicant is 47 years of age. He has had a titanium rod inserted into his leg and is missing his patella following a motorcycle accident in approximately 1998 or 1999 and consequently wears a knee brace. He has ongoing pain in his back and shoulder, is an asthmatic, and wears an ankle brace because he has twice ripped tendons in his ankle. The Applicant submitted supporting medical documents in the form of medical progress notes (in Exhibit A1).
Although the Applicant has substantial work experience, which may assist him to seek employment, his physical injuries are likely to make it difficult to undertake certain work, for example manual or labouring work, which may impact on his ability to establish himself and maintain basic living standards if he is returned to New Zealand. At the hearing, the Applicant was asked about whether he would be able to access money in his superannuation account to assist him to establish himself if he were returned to New Zealand. This was due to a notation in the “Management and Placement – Sentenced” report prepared by the Department of Corrective Services (approved 9 May 2017) which noted that the Applicant, “stated that if he has to be deported back [to New Zealand]… he has enough money in his superannuation to start a new life for himself” (page 5 of report in Exhibit A1). The Applicant’s evidence was that he was now approximately $380,000 in debt to his bank because he could not keep up the mortgage repayments on his home due to his incarceration. He stated that the bank had taken possession of his home and was selling it, however it has been on the market for approximately two to three years and has not sold. He stated that he believed the last asking price for the property was $100,000 and that he only had approximately $160,000 in his superannuation account. Consequently, even if the home was sold and his superannuation funds were accessed, the Applicant would not have enough money to repay his outstanding debt to the bank. This means that he also would not have access to any spare funds to assist in establishing himself if he were returned to New Zealand.
The Applicant is also likely to face some emotional hardship from being separated from his mother, partner and stepchildren, and from being returned to a country that is unfamiliar to him after residing in Australia since his early childhood.
Although the Applicant stated that he did “not understand the culture or customs” in his personal circumstances form (G9/69), New Zealand is broadly comparable to Australia. There is no evidence of any language or substantial cultural barriers that would constitute an impediment to the Applicant returning to New Zealand, nor is there evidence that the Applicant would not have the same access to services as other citizens of New Zealand, including economic support, social security, and access to education, employment and health services.
However, the Applicant also has no friends and limited family in New Zealand, save for an elderly aunt and the uncle who has relocated to care for her. After living in Australia for nearly his entire life, he would undoubtedly face difficulty in re-establishing himself in New Zealand, and the Tribunal accepts that he will have little or no family support, nor other existing social networks if he were returned to New Zealand.

The Applicant and his partner previously discussed her and her eight-year-old son relocating with the Applicant if he were returned to New Zealand. However, the Tribunal understands from the evidence of the Applicant and his partner that this is no longer possible because the father of the child will not give permission for the child to leave the country, despite having limited involvement in the child’s life.
The Tribunal also asked the Applicant if he was aware of organisations in New Zealand that aid persons who are removed from Australia to New Zealand. The Applicant stated that he was aware of a similar program and that he would probably seek assistance from them. The Tribunal finds that if the Applicant is returned to New Zealand, he is likely to have some limited assistance in resettling.
Overall, the Tribunal finds that the Applicant may encounter some difficulty and hardship establishing himself and maintaining a basic standard of living if he were to return to

New Zealand, but that these difficulties are not insurmountable. Consequently, this consideration weighs moderately in favour of the revocation of the Cancellation Decision.
Impact of COVID-19 pandemic
If the Tribunal affirms the Reviewable Decision, the Applicant must be removed to

New Zealand as soon as is reasonably practicable (under s 198 of the Migration Act). However, he must first complete his sentence of imprisonment which has a maximum term until 6 April 2023, and an earliest eligibility date for parole of 6 April 2021.
If restrictions on international travel due to the COVID-19 pandemic continue to exist at those dates, it may not be possible for the Applicant to be immediately removed. It is therefore possible that if the Tribunal affirms the Reviewable Decision, the Applicant may face an additional period of detention before it will be reasonably practicable to remove him to New Zealand. However, as noted by Member Eteuati in FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294, [299] “[t]his may result in prolonged but not indefinite detention for the Applicant until the risk presented by the virus … subsides”.
However, the Tribunal agrees with the Respondent’s submission that it is difficult to reach a conclusion in these circumstances, which are speculative, because there are several uncertain factors. The Applicant may be granted parole on 6 April 2021; however, he has indicated that if he is accepted into the Solid Steps alcohol and other drug recovery program, he will seek to defer his parole until completion of the program. There is also the possibility that the Applicant may be denied parole, which may result in his being released after serving his maximum term on 6 April 2023. It is very difficult to ascertain what the situation with the COVID-19 pandemic will be at this time. Consequently, the Tribunal finds the impact of the COVID-19 pandemic to be neutral.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 79.
In relation to the first primary consideration, the Tribunal has found that:
(a)the nature and seriousness of the Applicant’s conduct weighs strongly against the revocation of the Cancellation Decision (paragraphs 13.1 and 13.1.1 of Direction No 79); and
(b)the risk to the Australian community should the Applicant commit further offences weighs slightly in favour of the Tribunal refusing to revoke the Cancellation Decision (paragraphs 13.1 and 13.1.2 of Direction No 79).
Overall, with respect to the first primary consideration, the Tribunal has concluded that the protection of the Australian community (paragraphs 13.1, 13.1.1 and 13.1.2 of

Direction No 79), weighs moderately in favour of the Tribunal refusing to revoke the Cancellation Decision.
With respect to the second primary consideration, being the best interests of minor children (paragraph 13.2 of Direction No 79), the Tribunal has found that the best interests of the Applicant’s: 17-year-old stepdaughter weighed slightly; eight-year-old step son weighed strongly; and 19 month old step granddaughter weighed slightly in favour of revocation of the Cancellation Decision. The best interests of the Applicant’s infant grandson were given neutral weight.
The Tribunal has found that the third primary consideration, being the expectations of the Australian community (paragraph 13.3 of Direction No 79) would be that the Cancellation Decision should not be revoked. The Tribunal must now determine the weight to be applied to this consideration.
In determining the weight to be afforded to the third primary consideration, the Tribunal notes that the first primary consideration regarding the protection of the Australian community weighed against the Applicant. This consideration was comprised of the nature and seriousness of the Applicant’s offences, which weighed strongly against the revocation of the Cancellation Decision. It was also comprised of the likelihood of the Applicant

reoffending, with the Tribunal finding that the Applicant had a low likelihood of

reoffending, which weighed slightly against the revocation of the Cancellation Decision. Overall, the Tribunal found that the first primary consideration weighed moderately against the revocation of the Cancellation Decision.
Further, in determining the weight to be applied to the third primary consideration, the Tribunal must also balance the first primary consideration of the protection of the Australian community with the considerations that weigh in the Applicant’s favour. These considerations included: the primary consideration of the best interests of minor children, namely the interests of the Applicant’s eight-year-old stepson, which weighed strongly; 17- year-old stepdaughter and 19-month-old step granddaughter, which weighed slightly in favour of the revocation of the Cancellation Decision, with the best interests of the Applicant’s grandson being given neutral weight. Additionally, the Tribunal found that the strength, nature and duration of the Applicant’s ties to Australia (paragraph 14.2(1) of Direction No 79) weighed strongly in favour of the revocation of the Cancellation Decision. Further, the impediments the Applicant would face if returned to New Zealand weighed moderately in favour of the revocation of the Cancellation Decision (paragraph 14.5(1) of Direction No 79).
The Tribunal also considered the impact on victims, namely the Applicant’s adult stepdaughter, which weighed slightly in favour of the revocation of the Cancellation Decision, as well as the uncertainty of the impact of the COVID-19 pandemic, including the amount of time the Applicant may potentially be detained for until he can be returned to New Zealand, which was given neutral weight.
The Tribunal could not conclude that Australia’s non-refoulement obligations are engaged by any claims raised by the Applicant or on the materials before it and found this consideration to be neutral.
Thus, after balancing the relevant primary and other considerations, the Tribunal concludes that the expectations of the Australian community would weigh moderately against the revocation of the Cancellation Decision (paragraph 13.3 of Direction No 79).
The Tribunal finds that the primary consideration of the best interests of the Applicant’s eight-year-old stepson outweighs the other primary considerations of the protection of the Australian community and the expectations of the Australian community. Collectively, the best interests of the Applicant’s 17-year-old stepdaughter and 19-month-old step granddaughter, which weigh slightly in favour of revocation, add further weight in support of this conclusion. Further contributing to the exercise of discretion in the Applicant’s favour is the strength, nature and duration of his ties to Australia, including that the Applicant has resided in Australia since he was approximately four years of age, and the detrimental emotional and financial impact on his mother, partner, and step children if he were returned to New Zealand. The impediments if removed consideration, which weighs moderately in the Applicant’s favour, further contributes to the Tribunal exercising discretion in the Applicant’s favour, and to the Tribunal being satisfied that there is another reason to revoke the Cancellation Decision.
Having had regard to all of the relevant primary considerations and relevant other considerations in accordance with Direction No 79, the Tribunal is of the view that the correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision dated 8 July 2020 is set aside and substituted with the decision that the cancellation of the Applicant’s Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 180 (one hundred and eighty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

.............[Sgd]........................................................
Associate
Dated: 1 October 2020

Date of hearing:

21 and 22 September 2020

Representative for the Applicant:

Representative for the Respondent:

Self-represented

Ms C Saunders, MinterEllison

[2020] AATA 3823

1 October 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

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