Scarlett and Minister for Home Affairs (Migration) - [2020] AATA 371

Scarlett and Minister for Home Affairs (Migration) [2020] AATA 371 (21 February 2020)
Division:GENERAL DIVISION
File Number: 2019/7918
Re:Mitchell Scarlett
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Member Rebecca Arends
Date:21 February 2020
Place:Brisbane

The decision under review is affirmed.

......................[sgd]....................................
Senior Member Theodore Tavoularis

.........................[sgd].................................
Member Rebecca Arends
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs [2019] FCA 500
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
Member Rebecca Arends
21 February 2020
INTRODUCTION AND BACKGROUND

Mr Mitchell Scarlett (“the Applicant”) is a 22 year old citizen of New Zealand.[1] Movement records indicate that the Applicant first arrived in Australia on 28 April 2009 and has left Australia on seven occasions with his most recent arrival date being 11 January 2016.[2] He resided in Australia on a Class TY Subclass 444 Special Category (Temporary) Visa (“the Visa”).[3]
[1] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 2, paragraph 4.
[2] Exhibit G1, Section 501 G-Documents, G21, Applicant’s Movement Record, pages 137 to 139.
[3] Ibid, page 137.
The Applicant’s parents separated when he was very young. A few years later his mother married his (now) step-father.[4] The Applicant struggled at school with difficulties reading and writing.[5] He had some significant behavioural problems around the age of 10, which he overcame with the efforts and support of his mother and step-father. He and his family lived in Christchurch at the time of the earthquake in June 2011, when he was 13 years old. His step-father recalls the Applicant and a friend stopping on their way home from school to help an old lady who was scared to go back into her house even though he, himself, was frightened and did not know where his family were.[6] The Applicant’s school was destroyed by the earthquake so that he had to attend another school.[7] The Applicant’s family moved to Australia around six months later when he was 14 years old.[8] At age 16 he left school to find employment and he left home.[9] At the age of 17, the Applicant began a relationship with his (now) ex-partner who is important in the events that later unfolded. After working as a labourer, the Applicant secured a plastering apprenticeship of which he completed two years before he was incarcerated.[10]
[4] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”), paragraph 13.
[5] Exhibit G1, Section 501 G-Documents, G17, page 77, letter from Amanda Wakelin.
[6] Exhibit G1, Section 501 G-Documents, G17, page 78, letter from Bruce Wakelin.
[7] Exhibit G1, Section 501 G-Documents, G17, page 77, letter from Amanda Wakelin.
[8] Exhibit A1, Applicant’s SFIC, paragraph 16.
[9] Exhibit G1, Section 501 G-Documents, G17, page 77, letter from Amanda Wakelin.
[10] Exhibit A1, Applicant’s SFIC, paragraphs 20 to 22.
The Applicant has, in terms of a span of time, a four and a half year offending history. It runs from 8 December 2014 to 9 October 2019. His offending first came before lawful authority for sentencing on 8 December 2014. The Applicant was then 17 years old and he was sentenced for possession of dangerous drugs.[11] For this offending, the sentence reads as follows: “no conviction recorded, recognisance: $600.00, good behaviour period 6mo, drug diversion”.[12]
[11] In contravention of section 9(1)(d) of the Drugs Misuse Act 1986 (Qld) (“DMA”).
[12] Exhibit G1, Section 501 G-Documents, G9, page 62; Exhibit R2, Bundle of Summons Material, pages 4 and 5.
There followed three further sentencing episodes on 7 February 2019, 12 April 2019 and 9 October 2019. On 7 February 2019, the Applicant was sentenced on an indictment containing three drug offences:
·“possess dangerous drugs specified in Schedule 1 or 2”;[13]
·“possess dangerous drug specified in Schedule 1 or 2”;[14] and
·“possessing anything used in the commission of crime defined in Part 2”.[15]
[13] In contravention of s 9(1)(d) of the DMA.
[14] Ibid.
[15] In contravention of s 10(1)(b) of the DMA.
The sentence imposed for this offending involved (1) the recording of a conviction, (2) the imposition of a head custodial term of imprisonment of 12 months with (3) an immediate release on parole, and (4) a notation that “on all charges, conviction recorded, not further punished”.
On 12 April 2019, the Applicant was sentenced for three additional offences comprising:
·“assaults occasioning bodily harm (domestic violence offence)”;[16]
·“common assault (domestic violence offence)”;[17] and
·“possessing dangerous drugs”.[18]
[16] In contravention of ss 339(1) and 47(9) of the Criminal Code Act 1899 (Qld) Sch 1 (‘Criminal Code’).
[17] In contravention of ss 335(1) and 47(9) of the Criminal Code.
[18] In contravention of s 9(1)(d) of the DMA.
The sentence imposed for this offending involved is best described on an offence-by-offence basis.
For the “assaults occasioning bodily harm (domestic violence offence)”: (1) a conviction was recorded; (2) a term of imprisonment of 15 months was imposed; (3) that this 15 month term be served concurrently with the other custodial term imposed on that day; (4) a declaration that time spent in pre-sentence custody be deemed as time already served under this sentence (84 days – from 18/01/2019 to 12/04/2019); and (5) that a parole release date of 03/06/2019 be fixed.
For the “common assault (domestic violence offence)”: (1) a conviction was recorded; (2) a term of imprisonment of six months was imposed; (3) that this six month term be served concurrently with the other custodial term imposed on that day; (4) a declaration that time spent in pre-sentence custody be deemed as time already served under this sentence (84 days – from 18/01/2019 to 12/04/2019); and (5) that a parole release date of 03/06/2019 be fixed.
For the “possessing dangerous drugs”: (1) a conviction was recorded; and (2) an order was made that the Applicant not be further punished for this offence.
On 9 October 2019, the Applicant was sentenced for “possessing dangerous drugs Schedule 1, drug quantity of or exceeding Schedule 3 but less than Schedule 4”[19] and had the following sentence imposed for this offending: (1) a conviction was recorded, (2) a term of imprisonment of 12 months (concurrent) was imposed with (3) immediate release on parole.
[19] In contravention of s 9(1) of the DMA.
While serving his term of imprisonment (i.e., criminal custody), a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided on 22 May 2019 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[20]
[20] Exhibit G1, Section 501 G-Documents, G3.
On 29 November 2019, a delegate of the Minister decided, pursuant to s 501CA(4) of the Act not to revoke the visa cancellation decision made on 22 May 2019 (“the decision under review”).[21]
[21] Exhibit G1, Section 501 G-Documents, G8.
The Applicant lodged an application with this Tribunal on 2 December 2019 seeking a review of decision under review.[22] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.[23]
[22] Exhibit G1, Section 501 G-Documents, G2.
[23] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see section 500(6B) of the Act.
The hearing of the instant application proceeded on 6 February 2020 and received oral evidence from the Applicant as well as from his mother, his step-father and his support worker during his time in both criminal custody and immigration detention. The Tribunal also received written evidence from both the Applicant and the Respondent. This written evidence was categorised into an exhibit list, a true and correct copy of which is attached hereto and marked “Attachment A”.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(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.
There is no question that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[24]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[25]
[24] [2018] FCAFC 151.
[25] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[26] I will address each of these grounds in turn.
[26] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 12 April 2019, the Applicant was convicted at the Ipswich Magistrate’s Court to respective terms of 15 and six months (to be served concurrently). A parole release date for both sentences was fixed at 3 June 2019.
The decision under review notes that:
“8. In the representations/documents that Mr SCARLETT submitted, he does not dispute the information in the Australian Criminal Intelligence Commission ‘Check Results Report’ released on 10 May 2019, regarding his criminal conviction and sentence, or that he does not satisfy the character test.”[27]
[27] Exhibit G1, Section 501 G-Documents, G8, page 46.
In written submissions filed on his behalf, the Applicant concedes that, as at the date of the mandatory cancellation on 22 May 2019, the Applicant (1) “has a substantial criminal record as defined through s 501(7)(c)”; and (2) “did not pass the character test as prescribed by s 501(6)(a)”.[28]
[28] Exhibit A1, Applicant’s SFIC, page 2, paragraph 4(a) and 4(b).
The custodial sentences imposed on the Applicant on 12 April 2019 involved his early release on parole on 3 June 2019. We note that what matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[29]
[29] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416; See also s 501(7A) of the Act which relevantly provides: “(7A) For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms. Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.”
We are consequently satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.[30] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
(1)…a decision maker:
…
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.[31]
[30] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[31] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:
a.International non-refoulement obligations;
b.Strength, nature and duration of ties;
c.Impact on Australian business interests;
d.Impact on victims;
e.Extent of impediments if removed.
We note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[32]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[33]
[32] [2018] FCA 594.
[33] Ibid, [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(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 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;
(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;
(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 be allowed to come to or remain permanently in Australia; and
(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 for determining whether to exercise the discretion.
We will now turn to addressing these considerations.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to 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. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
On 22 November 2014, a couple of months after his 17^th birthday, the Applicant was found in possession of dangerous drugs. On 8 December 2014 he was sentenced to a six month good behaviour bond and drug diversion.[34]
[34] Exhibit R2, Summonsed Material, page 4.
Three years later, on 22 December 2017, the Applicant was found in possession of four MDMA tablets.[35] On 12 April 2019 he was convicted of possessing dangerous drugs and not further punished.[36]
[35] Exhibit R2, Summonsed material, page 7.
[36] Exhibit R2, Summonsed Material, page 4.
Only two weeks after that, on 5 January 2018, the police executed a search warrant at the Applicant’s home and asked him if there was anything he wanted to declare. He directed them to a small quantity of MDMA tablets on the kitchen bench. The police later found 297 MDMA tablets in a shoebox in the wardrobe in the Applicant’s bedroom.[37] Police also found a small quantity of marijuana and some clip-seal bags in the Applicant’s car.[38] On 7 February 2019 he was convicted of two charges of possessing dangerous drugs and one charge of possessing things used in the commission of crime, and sentenced to 12 months imprisonment with immediate release on parole.[39]
[37] Exhibit R2, Summonsed material, page 7; Exhibit G1, Section 501 G-Documents, G10, Judge’s sentencing remarks, page 64.
[38] Exhibit R2, Summonsed Material, page 7.
[39] Exhibit R2, Summonsed Material, page 4.
On 24 February 2018, the Applicant’s then-partner reported to the police that in October 2017 he had hit her with a vacuum cleaner pipe, and that earlier in the week he had punched her. She told police that he had been punching her for some time and that she wore long sleeved tops to cover the bruises. She said she did not want the Applicant to get into trouble because he was from New Zealand and could be deported. She said that the applicant was angry with her because earlier her mother had reported his violence to the police and the police had become involved. She had decided to leave the Applicant, but he approached her with clenched teeth and put his hand up as if to choke her saying “You’re not going anywhere”. He pulled her keys off her fingers, hurting her, and took her mobile phone. When she went outside to retrieve the items, he locked her out. She did not wish to make a complaint but requested a Domestic Violence Order (“DVO”) with “no contact” conditions.[40]
[40] Exhibit R2, Summonsed Material, pages 22 and 23.
In August 2018 the Applicant attacked his ex-partner in their home. He tried to choke her, pulled a chunk of hair from her head, took her phone so she could not use it to call for help, picked her up and carried her back into the home when she attempted to leave, and subsequently pushed her out of the home and locked her out. This offending breached the DVO.[41] On 12 April 2019, he was convicted of “common assault (domestic violence offence)” and sentenced to 6 months imprisonment to be served concurrently with the sentence referred to in the next paragraph.[42]
[41] Exhibit R2, Summonsed Material, page 25.
[42] Exhibit R2, Summonsed Material, page 4.
On 3 December 2018 the Applicant attacked his ex-partner at their home after she asked him about a Snapchat he had received from a female person whom he had met the night before. He pushed her against a cupboard, pushed her in the chest area, then squeezed her neck tightly so that she struggled to breathe, causing bruising and red marks on her neck and chest. He then punched her arm with a closed fist approximately 12 times causing bruising and red marks. This offending also breached the domestic violence order.[43] On 12 April 2019 he was convicted of assaults occasioning bodily harm (domestic violence offence) and sentenced to 15 months imprisonment.[44]
[43] Exhibit R2, Summonsed Material, page 26.
[44] Exhibit R2, Summonsed Material, page 4.
On 18 January 2019 the Applicant’s then-partner complained to police that he had sent her threatening and abusive messages that included;[45]
[45] Exhibit R2, Summonsed Material, page 32.
·Fuck off you fucking dog cunt
·Cunt
·I’ll kill you
·Just at 50 vally I’m good [apparently a reference to Valium]
·I’ll beat the fuck out of you
·You’re a fucming [sic] drama queen cunt
·Don’t come back to this place you fucking dog
·I’ll kill you cunt
·Better run hey hahaha
·Call the cops on me cunt I’ll fucking kill you
·I’m going to kill you, you better watch out. Get ready.
These threats were included in the offences for which the Applicant was sentenced on 12 April 2019.
Police arrested the Applicant later on 18 January 2019 at his home and found MDMA hidden in the tailpipe of a motorbike registered to him. On 9 October 2019, the Applicant was convicted of possessing dangerous drugs and sentenced to 12 months imprisonment, concurrent with his other sentence. The Applicant was hospitalised pursuant to an emergency examination order at the instigation of police,[46] and subsequently taken into custody on 18 January 2019.[47] Since that date he has been in either prison or immigration detention.
[46] Exhibit R2, Summonsed Material, page 32.
[47] Exhibit G1, Section 501 G-Documents, G12.
The Applicant had some traffic infractions however we would not characterise these as particularly serious or persistent.
The Applicant’s parole release date has passed, meaning that if his visa is reinstated, he will serve the rest of his sentence in the community on parole. The materials before us do not contain specific evidence of his parole end-date, however it would appear to be around October 2020 (being 12 months from the date that the 12 month sentence was imposed) or November 2020 (according to the Applicant’s evidence[48]).
[48] Transcript, page 18, lines 33 and 34.
The Applicant’s violent conduct towards his ex-partner is clearly very serious, and he conceded as much under cross examination.[49] Not only did he physically attack and injure her on numerous occasions between October 2017 (at the latest) and December 2018, he became angry with her because her mother had told police about his physical abuse of her, he sought to prevent her from calling for help, he tried to stop her from escaping when he was attacking her, and he sought to terrorise her with threatening and degrading messages. He did all of this while subject to a domestic violence order which had been put in place to protect his ex-partner from his abuse. His attacks on his ex-partner only stopped when he was incarcerated.
[49] Transcript, page 20, lines 25 and 26.
In sentencing the Applicant for these offences, the learned Magistrate remarked:[50]
“Your behaviours were exacerbated by your use of illicit drugs. And I accept that [sic] the previous two years there was some significant deterioration in your behaviours. Those factors may provide some background to the offending, but they in no way excuse the offending…
The offences before the court are very serious. In August 2018 there’s an attempted choke. There’s acts of pulling the complainant’s hair. They are somewhat controlling in themselves. And there’s further controlling behaviour. You’ve taken away the phone to stop her calling other people. In December 2018 you’ve pushed her against the bedroom cupboard, placed your hands around her throat. You squeezed. You almost choked her. She found it hard to breathe. She had bruising to her throat and top of her chest. She then - you let go of her. You then start punching the complainant to her right arm, causing her pain, some 12 punches, and again there was bruising and red marks to her arm. It’s extremely fortunate that there were no other more serious injuries to the complainant. In addition to that, we get to January 2018.
You’ve made threats by Facebook and also other threats by Snapchat to kill her, and you’ve then called her and told her over the phone that, “I’m going to kill you. You better watch out. Get ready.” Those behaviours are cowardly. They are serious breaches of the order that was in place.”
[50] Exhibit G1, Section 501 G-Documents, G11, pages 68 and 69.
In the hearing before the Tribunal, the Applicant gave evidence that he could not recall some of the abusive conduct attributed to him probably because he was under the influence of drugs, however he did not dispute that it had all occurred[51]. He rightly conceded that his abusive conduct towards his ex-partner was “disgusting”[52] and “awful”[53] and that it had “damaged her as a person”[54].
[51] Transcript, page 28, line 8 to page 30, line 20, and page 33, lines 25 and 26.
[52] Transcript, page 16, line 2.
[53] Transcript, page 20, line 6.
[54] Transcript, page 10, lines 17 and 18.
The Applicant’s drug offending can readily be described as serious. In November 2014, at the age of 17, he was caught in possession of MDMA[55] and given the benefit of a good behaviour bond. In December 2017, at the age of 20 he was again caught in possession of MDMA. Only two weeks later, in January 2018, police found 297 MDMA tablets hidden in his bedroom. A year after that, the Applicant was again found in possession of MDMA. Further, he admits to having used, and become addicted to, cocaine during the period when he was offending against his ex-partner, and he attributes his offending conduct to that drug use.
[55] Implied by the sentencing Judge’s remarks with respect to the subsequent drugs offences, imply that the first possession offence was for possession of MDMA: Exhibit G1, Section 501 G-Documents, G10, page 65.
When sentencing the Applicant for the January 2018 drugs offences, the learned sentencing Judge said:
“…drugs are one of the evils of our society…What I can tell you from sitting in a courtroom and seeing this day in, day out, is that they just wreck lives, they wreck families, they wreck relationships, they wreck your prospect of finding a job, and they wreck the prospect of you ever becoming a decent member of this community. So you need to stop taking them yourself and you need to stop making them available for others. If you don’t, you’ll just find yourself serving longer and longer periods of imprisonment. I don’t want to see a young man like you doing that.”[56]
[56] Exhibit G1, Section 501 G-Documents, G10, page 64, lines 36 to 44.
We would add that, in relation to those particular offences, it is very concerning that the Applicant had some MDMA tablets on the kitchen bench and a large quantity in his bedroom at a time when he was sharing the residence with his older sister and her nearly-one-year-old baby[57].
[57] Transcript, page 23, lines 41 to 44, and page 24, lines 9 to 13.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(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)…
(d)Subject to paragraph (b) above, the sentence imposed by the Court 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)…
(h)…
(i)…
Factor (a) of paragraph 13.1.1(1) of the Direction provides that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously. Factor (b) of paragraph 13.1.1(1) provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. The Applicant’s offending against his ex-partner involved violent, threatening, destructive and potentially catastrophic treatment of a woman. It must be viewed very seriously. The material contains a letter of support from the Applicant’s ex-partner dated 1 April 2019 that appears to have been provided for the purpose of his criminal proceedings[58]. In it she expressed a belief that his offending does not reflect the person he really is and she says she reported the assaults to get him help rather than to see him punished. However, it should be noted that her generosity of spirit in no way militates against the seriousness of the Applicant’s offending against her. The Applicant himself admits that his offending was disgusting and awful. Further, he agreed with the proposition put by Counsel for the Respondent that the totality of his offending is “very serious”[59]. These factors (a) and (b) weigh heavily in favour of non-revocation.
[58] Exhibit G1, Section 501 G-Documents, G17, page 75.
[59] Transcript, page 20, lines 25 and 26.
Factor (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker to have regard to the sentences imposed by the Courts for crimes of the Applicant. It should be noted that the imposition of a custodial term is normally a measure of last resort in the hierarchy of sentencing options available to a sentencing court. The Applicant was sentenced to concurrent periods of imprisonment of 6 months and 15 months for the offending against his ex-partner. The learned Magistrate ordered that the 84 days the Applicant had spent in pre-sentence custody be taken into account and that he be released on parole on 3 June 2019, meaning that the Applicant would effectively serve nearly 6 months in prison for those offences. The learned Magistrate arrived at this result after taking into account several mitigating factors described in the following manner:[60]
“… I’ve taken into account what is an early plea of guilty, and for that I have reduced the sentence I would have otherwise imposed.
…
I’ve taken into account your youth. You were only 20 at the time of the commission of the offences. You’re now 21. You’ve had some mental health challenges [indistinct] references from the complainant. She talks about the significant changes you’ve made since 18^th of January 2019. Your mother and your stepfather outline in their documentation which is addressed to [sic] Department of Home Affairs of which I’m going to take note of. It indicates your remorse and that these behaviours are not your true character and they were subject to bad influences at the time.
I note you have options on your ultimate release to be assessed and engage with the lives [indistinct] rehabilitation and supports. Before being remanded in custody… you completed two years of your plastering apprenticeship. You had some challenges in your life, including the loss of a grandmother. The 2008 assessment at which time you were only 10 outlined that at that stage you had anger management problems and you had difficulties with schools and there was a degree of aggression. I also accept the separation of your parents had some impact upon you from what was a violent relationship.”
[60] Exhibit G1, Section 501 G-Documents, G11, page 68, lines 1 to 3 and 11 to 27.
For the January 2019 drug offence, the Applicant was sentenced to 12 months imprisonment, with immediate release on parole – which carries the threat that if parole is breached an offender must serve the rest of the sentence in prison.
There can be no doubt that the abovementioned sentences of imprisonment militate in favour of a finding that this Applicant’s offending is serious in nature and thus we afford a moderate level of weight to this factor(d) in favour of non-revocation.
Factor (e) of paragraph 13.1.1(1) of the Direction refers to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. First, we note the drug possession conviction in 2014 was isolated and the Applicant was not charged with any further offences for three years until 2017. There was then a 15 month period when the Applicant was violent to his ex-partner and committed drugs offences. We think the Applicant’s offending has been serious since the commencement of that 15 month period.
In February 2018, the Applicant’s ex-partner reported to police that the Applicant had hit her with a vacuum cleaner pipe in October 2017 and that he had been “hitting her for some time”. As well, in in January 2018, police found the Applicant to be in possession of 297 MDMA tablets at his home. While there does not appear to have been any escalation in the Applicant’s drugs or domestic violence offending, there does appear to be a persistence in his offending in both the realm of illicit drugs and domestic violence, thus rendering the totality of his offending as very serious.
We are of the view that having regard to both the persistent nature of the offending and the seriousness of his offending in late 2017, 2018 and early 2019 – relative to the seriousness of his initial offending in 2014 – is such as to result in the allocation of a moderate level of weight to this factor (e) in favour of non-revocation.
Factor (f) of paragraph 13.1.1(1) of the Direction refers to the cumulative effect of repeated offending. In specific terms, the Applicant’s physical violence has been such as to harm at least one member of the community on several occasions. While the victim of the Applicant’s domestic violence has not provided a victim impact statement, and in fact has provided a letter of support, the Applicant nevertheless concedes that his violence towards her damaged her as a person, and that “Mentally, what I put her through, anyone through, you know. It’s just not acceptable.[61]
[61] Transcript, page 50, lines 41 and 42.
The drug offences all involved possession rather than supply or trafficking, and there is no evidence of any commerciality behind the Applicant’s drug offending. Be that as it may, for one offender to be in possession of 297 MDMA tablets at the one time is extraordinary. Apart from the very serious and potentially catastrophic domestic violence offending against his ex-partner, we also note there is no evidence to suggest his consumption of illicit drugs caused him to offend against others either personally or in relation to their property.
We have had regard to the totality of the Applicant’s offending. Its cumulative effect can be seen in the extent to which his abuse of illicit drugs causes him to lose his moral compass, fail to distinguish between right and wrong and respect personal boundaries resulting in his very serious offending – particularly in a domestic violence context. On this basis, we are of the view that the cumulative effect of his offending is such as to render, pursuant to this factor (f), the totality of this offending as very serious.
Taking all these matters into account, we are of the view that the cumulative effect of the Applicant’s repeated offending renders it very serious.
We are of the view that factors (c), (g), (h) and (i) of paragraph 13.1.1(1) of the Direction do not have application to the instant factual matrix and thus do not require consideration.
The Applicant contends that the offending against his partner was out of character and very much related to drug use, and there is support for this contention in his ex-partner’s letter of support. It is readily apparent that, with the exception of the offence in 2014, the Applicant’s drug offences span approximately the same period as the violent conduct towards his ex-partner. It is also readily apparent that, with the exception of the offence in 2014, the Applicant’s offending was confined to finite period, being approximately 15 months commencing a few months after his 20^th birthday and continuing until his incarceration.

The Applicant, in his statement to the Tribunal, sought to explain his offending in the following way:[62]
[62] Exhibit A2, Applicant’s bundle of further evidence intended to be relied on, Statement of Mitchell Scarlett, pages 5 and 6.
“I first tried cocaine when I was 20 years old, at a friend’s 21^st birthday party and I became addicted to it.
…
Within a relatively short period of time, I lost control, and I started [sic] became addicted to cocaine…
…
My cocaine use started causing problems with my apprenticeship, and also my personal life. I was really moody, and starts [sic] constantly having arguments with my parents and my partner.
…
I used drugs to escape the reality of life. At that time of my life I saw no purpose in life. I was not happy where I was. At the time, I felt I had nothing to look forward to.
During this time I became really anxious and depressed, which I believe was drug-related. I say that because I feel much better now that I am clean.
…
Cocaine also made me totally uninhibited and compounded my behavioural problems which ultimately led me to being physically violent against my ex-partner…
I totally stopped caring about my partner, and stopped talking to my mum (I was speaking to her but not about anything important, I stopped relying on her for emotional support).
I became totally selfish, thinking about no one else.”
In a statement made for the purpose of this Application, the Applicant says he has been diagnosed with Oppositional Defiance Disorder (“ODD”) but was still coming to terms with that.[63] Further, he felt inadequate and embarrassed at school because he found reading and writing difficult,[64] that he was living in Christchurch at the time of the earthquake and was traumatised by that experience, and he had been deeply affected by the death of his grandmother.[65] This evidence is broadly corroborated by his mother’s evidence. However, in the absence of independent and expert evidence identifying (1) these asserted triggers/traumas/diagnosis and (2) explaining the extent to which all or any of them have impacted upon the psychological symptomatology of the Applicant, we have misgivings about relying on any/all of those factors as a means of explaining the Applicant’s conduct resulting in his offending.
[63] Exhibit A2, Applicant’s bundle of further evidence intended to be relied on, Statement of Mitchell Scarlett, paragraphs 32 and 33.
[64] Exhibit A2, Applicant’s bundle of further evidence intended to be relied on, Statement of Mitchell Scarlett, paragraphs 9 to 16.
[65] Exhibit A2, Applicant’s bundle of further evidence intended to be relied on, Statement of Mitchell Scarlett, paragraphs 19 to 23 and 27 to 31.
All that remains is our assessed levels of seriousness of his offending, it being: “serious” in terms of his drug offending and “very serious” in terms of his domestic violence offending against his ex-partner.
We have had regard to the totality of the evidence relating to the nature and seriousness of the Applicant’s offending conduct. Upon application of the relevant sub-paragraphs (a), (b), (d), (e) and (f) of paragraph 13.1.1(1) of the Direction to the factual circumstances of his offending, we find the totality of his offending to be very serious and that such finding weighs heavily against revocation of the mandatory cancellation decision.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
·Paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·Paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is, to our minds, properly informed by the nature of his offending to date. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The Applicant has displayed a propensity to use illicit drugs including MDMA in a recreational manner and, more latterly, cocaine to which he quickly became addicted. He has displayed a propensity towards violent, controlling and threatening behaviour against a former female partner when under the influence of cocaine. In the words of his victim in the letter of support in the materials:[66]
“Before Mitchell’s dependency on drugs he’d never physically hurt me in any way, shape or form. When originally pressing the charges my intent was never to punish Mitchell for how he had treated me it was to get him the help that he truly needs before it got any worse.”
[66] Exhibit G1, Section 501 G-Documents, G17, page 75.
During the 15 month period when the Applicant was offending, his behaviour was largely unregulated and it continued despite having drugs and domestic violence charges brought against him and having a DVO placed on him. The potential consequences flowing to individuals in the Australian community from further similar offending would be very serious. We note the Applicant was found in possession of 297 MDMA tablets. It is difficult to imagine anything other than a harmful outcome for either or both the Applicant or the Australian Community as a result of him being in possession of that amount of illicit drugs.
On the basis of his drug offending history, were the Applicant to resume his abuse of illicit drugs, there is, to our minds, a convincing likelihood that he would resume his offending conduct of a violent nature – either against a domestic partner or against a member of broader Australian community. Were he to re-offend in this manner, the resulting harm to either a domestic partner or member of the general community would be physically, psychologically and potentially catastrophically harmful.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
In the Applicant’s written response to the decision to cancel his visa he answered the question “Do you believe that there are any factors that help to explain your offences which should be taken into account by the decision-maker?” as follows:[67]
“Regretably I started expermenting with drugs, alcohol & like many young people in my circle of friends I did not see the dangers that lay ahead. What started out as a great loving relationship soon deteriorated between my partner & myself. In a very short period of time our use of cocaine turned from a social activity to regular addiction with devastating consequences. Arguments became common place & this escalated into assaults that I am so ashamed and remorseful for. I am a good person with a great future ahead of me as a plasterer. I have just about completed my 3^rd year of an apprenticeship. I am fortunate to have stayed on talking terms with my ex partner, this gave me the opportunity to express my remorse & heartfelt apologies for my appalling behaviour as my first & foremost concerns are for her to make a full recovery”.
[errors in original]
[67] Exhibit G1, Section 501 G-Documents, G20, pages 122 and 123.
We note that, when describing the deterioration of his relationship with his ex-partner, the Applicant refers to “our use of cocaine”. In her letter of support,[68] his ex-partner said “Over the years I’ve tried to help Mitchell with mental health issues as he has tried to help me as well” [emphasis added]. The evidence suggests that issues such as mental health issues and the abuse of illicit drugs may have been issues that the Applicant and his partner had in common. While we do not base any determinative finding about the Applicant’s recidivism on this observation, we think it likely that the nature of their former relationship was such that it did not serve as a protective influence with respect to the Applicant’s propensity to abuse illicit drugs and to seriously offend as a result.
[68] Exhibit G1, Section 501 G-Documents, G17, page 75.
The Applicant now says his relationship with his ex-partner has ended and that this is a factor that will assist him to avoid re-offending. Further in his written response to the decision to cancel his visa, he answered the question “What do you think is the likelihood that you may reoffend now? Please give reasons for your answer” as follows:
“The likelyhood of reoffending is nil as my previous use of drugs was the determining factor in my offending behaviour. I do not & will not ever partake in the use of drugs again in my life. This has been cemented even more into my mind due to a death of a life long life friend who failed to make the decisions I have made. He suffered an overdose and sadly lost his life to drugs at the age of 21. This could have easily been me. I am no longer in the relationship in question as we can see the damage is irrepairable, so again there is no catalyst for future offending.… I have very supportive & understanding parents who care for my welfare and future well being. With all of those factors taken into account & young on my side I can learn and move on to become an asset to the community and good contributor to society.”[69]
[errors in original]
[69] Exhibit G1, Section 501 G-Documents, G20, pages 122 and 123.
The Applicant’s Statement of Facts, Issues and Contentions (“SFIC”) states that his offending was in the context of (a) drug use and an increasing and significant drug addiction; (b) pushing his family away and associating with persons who partook in the drug culture; and (c) spiralling mental health, exacerbated by non-diagnosis and deficient treatment.[70]
[70] Exhibit A1, Applicant’s SFIC, paragraph 68.
It is readily apparent the Applicant’s drug use was a major contributing factor in his offending.
The Applicant, his mother and his step-father (we will refer to his mother and step-father collectively as his parents) gave evidence to the effect that the Applicant’s family was a close-knit, happy family and that the Applicant’s descent into drug use coincided with him finishing school, moving out of the family home and distancing himself from them. In the Applicant’s words:[71]
“I have mended my relationship with my parents and siblings, and they are now my central support network, whereas previously when I was in the worst of my drug use I distanced myself from them physically and emotionally”
[71] Exhibit A2, Applicant’s bundle of further evidence intended to be relied on, Statement of Mitchell Scarlett, page 9.
Among the material before the Tribunal, in addition to the evidence given by the Applicant’s parents, there are letters of support before the Tribunal from his two sisters[72] and friend.[73] One of the primary themes of these supportive material is that the Applicant’s offending was out of character and he has made real efforts at rehabilitation. The letters from his family speak of him re-establishing a close bond with them since his incarceration. In addition, there are two letters dealing with employment (amongst other things). The first, speaks an intention ‘…support him in any way possible in his future work endeavours.”[74] The second, had offered the Applicant a “… a chance and offer him employment upon his release”.
[72] Exhibit A2, Applicant’s bundle of further evidence intended to be relied on, pages 80 and 82.
[73] Exhibit A2, Applicant’s bundle of further evidence intended to be relied on, pages 85.
[74] Exhibit A2, Applicant’s bundle of further evidence intended to be relied on, pages 86 and 87.
With respect to the contention that the Applicant experienced “spiralling mental health” that was not diagnosed or treated sufficiently, it is not clear what this refers to. In his written response to the visa cancellation decision he was asked “Do you have any diagnosed medical or psychological conditions?” to which he answered “ODD – Oppositional Defiance Disorder”, and he also reported anxiety for which he was taking Zoloft.[75]
[75] Exhibit G1, Section 501 G-Documents, G20, page 125.
His mother, in a letter of support, says he was “diagnosed with reading and writing difficulties and mental illness at the age of 8 years old”[76]. A Detention Client Interview form that is dated 6 June 2019 states that the Applicant suffers from anxiety and depression[77], although the Applicant subsequently stated that he believes his anxiety and depression were drug related.[78]
[76] Exhibit G1, Section 501 G-Documents, G17, page 77.
[77] Exhibit G1, Section 501 G-Documents, G19, page 83.
[78] Exhibit A2, Applicant’s bundle of further evidence intended to be relied on, Statement of Mitchell Scarlett, page 5.
It is therefore not apparent from the material that an undiagnosed mental condition contributed to the Applicant’s offending. Nor is it apparent from the materials before us what treatment, if any, he is now having with respect to his psychological symptoms and issues.
The Respondent contends that the Applicant had a problem with violent behaviour long before the offending that appears in his criminal history. The Respondent’s solicitor pointed to a “Psychiatric Assessment Summary”, dated 3 April 2008, which relevantly states that:[79]
“[the Applicant] was referred to Child and Family Specialty Services by [the Principal of his school] due to behavioural difficulties which the school have found difficult to manage.
The referrer describes the behaviours… as non-compliance, anger episodes, low self esteem, an overdeveloped sense of unfairness, blames others, lying, and stealing.
On assessment [his mother and stepfather] shared their concerns, which they described as repeated behaviours, anger episodes, calling out in class, and being disruptive. [His mother] reported difficulties at school which included fighting, frequent time out episodes, and being stood down. It was reported that [the Applicant] has stolen on a few occasions (cell phone, a padlock, and money)…[His mother] reported that [the Applicant] now attends Cholmondeley every 10 weeks for respite. [His mother] reported that [the Applicant] does not have a lot of respect for [his stepfather] and that he can be verbally abusive towards his older sister…”
[79] Exhibit R2, Summonsed Material, pages 42 and 43.
In the hearing, the Applicant gave evidence about his difficulties at school. He said:
“Obviously growing up with a reading and writing, struggling with that, I felt, I struggled to fit in with school. I’d always struggle just understanding the concept of reading and writing stuff, you know. So, when it came to things like homework or Just simple day to day tasks (indistinct) I struggled. That’s when I really relied on my mum.”[80]
“…just felt different to everyone else, you know, felt I didn’t fit in. Felt worthless. Felt like, what’s the point? You know? I was trying, trying, trying and not getting anywhere.”[81]
“I was ashamed. I was ashamed, I didn’t want to open to mates and say I’m struggling, you know. It’s - I felt embarrassed, you know. I felt like it was a sign of weakness. So, yes, I think growing up I just, instead of learning to open up to people and tell them how I really felt, I bottled everything up, let everything just get on top of me and then, yes, not knowing how to express myself.”[82]
[80] Transcript, page 5, lines 31 to 35.
[81] Transcript, page 6, lines 34 to 36.
[82] Transcript, page 8, lines 23 to 28.
When the Respondent’s solicitor asked the Applicant if he recalled being referred to the Child and Family Speciality Services because of behavioural problems at school, he denied any recollection of any anger, stealing or fighting incidents.[83]
[83] Transcript, page 36, lines 20 to 30, and page 37, lines 10 to 16.
The Applicant’s mother, when asked about the Psychiatric Assessment Summary‘s reference to fighting, characterised the fighting as play fighting and appeared to play-down its seriousness[84]. The Applicant’s step-father appeared to do the same when he gave evidence[85]. However, he acknowledged that when the Applicant was disciplined the Applicant’s “ODD would kick in” and the Applicant struggled to contain his emotions. He attributed some of the Applicant’s “acting out” to his visits with his biological father as it tended to happen after spending weekends with him.[86]
[84] Transcript, page 56, lines 19 to 25.
[85] Transcript, page 61, lines 30 to 41.
[86] Transcript, page 62, lines 34 to 42
With respect to the Applicant’s behavioural problems in his childhood, the Applicant’s mother gave evidence that:
“He was diagnosed with ODD at a young age, which we – he – and had parental – to parenting meetings and family support groups to keep him on the right path. And we had him into lots of sports and to redirect him.”[87]
[87] Transcript, page 52, lines 34 to 37.
The Applicant’s step-father gave similar evidence, describing the Applicant, as a child, as being very sport oriented[88] and referring to:
“…multiple parenting courses, and family therapy sessions, and – to make sure that, you know, Mitchell got help with his ODD and, you know, processing that information”[89].
[88] Transcript, page 59, lines 14 to 18.
[89] Transcript, page 60, lines 33 to 35.
He further said:
“…we did the parenting courses and family therapy sessions and we implemented parenting techniques which helped us with that. And we had dramatic improvement in his behaviour. Also he dedicated a lot of his time to sport, that kept him very busy. And overall, we were able to manage most of his ODD behaviours with parenting techniques.”[90]
[90] Transcript, page 62, lines 2 to 8.
We accept the accuracy of the Psychiatric Assessment Summary, and we find that the Applicant exhibited behavioural problems including violence and dishonesty when he was a child. We accept the evidence of the Applicant’s parents that they were successful in managing the Applicant’s behaviour by doing family therapy, using parenting techniques and keeping him busy with sport, and we note that he appears to have stayed out of trouble for the following six years (ie 2008 – 2014), and that he did not start to physically abuse his ex-partner when he left school or when he moved out of home but, later in his life at the age of 20 when he became addicted to cocaine.
We are satisfied that, with the help of his family, the Applicant overcame the behavioural problems he had in his childhood and that his offending and domestic violence much later was closely tied to his cocaine addiction.
Therefore, the risk of the Applicant re-offending is closely tied to the risk of him returning to drugs. He claims that since he has been incarcerated he has not used drugs[91]. There is no evidence that he has used drugs while in detention. We accept that the Applicant has abstained from drug use since being taken into custody on 18 January 2019. Nor is there any evidence that he has offended or exhibited violent behaviour while in prison or immigration detention and we accept there is no evidence of such behaviour in the material. However, his ability to remain free of drugs and crime in the community is yet to be tested.
[91] The Applicant’s SFIC asserts that there was a brief period while the Applicant was on bail in which he abstained, however the learned Magistrate’s sentencing remarks on 12 April 2019 indicate that he was never released after being taken into custody on 18 January 2019: Exhibit G1, Section 501 G-Documents, G11, page 69.

The Applicant has an offer of employment should he be returned to the Australian community[92]. However, we note he was employed while engaged in using drugs and behaving very violently towards his ex-partner.
[92] Exhibit A2, Applicant’s bundle of further evidence intended to be relied on, page 84.
The Applicant’s SFIC states that the Applicant no longer associates with “maladaptive acquaintances”. The Applicant claims that “I now have a friend group of only five to ten people who I really trust and who are not users of drugs”.[93] While such evidence can be accepted at face value, and while it constitutes a positive step, the Applicant’s ability to stay away from bad influences in the broader community remains untested.
[93] Exhibit A2, Applicant’s bundle of further evidence intended to be relied on, Statement of Mitchell Scarlett, page 7.
The Applicant and his mother gave evidence that since his incarceration, his parents have visited him every weekend and they have re-established the bond and closeness that they once had before the Applicant distanced himself from them. The Applicant’s parents each gave emotional evidence in person before the Tribunal. Their concern for, and commitment to, the Applicant was palpable, and we are in no doubt that they will do the best they can to help the Applicant were he to be returned to their care.
However, as the Respondent pointed out, the devotion of the Applicant’s family did not previously stop him from using drugs and very seriously offending. Nor did the fact that he had full-time employment. The question then becomes: is this Applicant in any better position now to abstain from drugs and violence than he was at the time of his removal from the Australian community in January 2019?
The Applicant contends that he is, now that he has insight into his offending and has re-connected with his family. His step-father’s evidence supports this contention. He gave evidence that:
“…he’s been able to talk to us about his problems now, as where he couldn’t talk to us about his problems before. And now that he can talk to us about it, we’re aware of issues and his drug use – previously. So we will be able to monitor that, keep an eye on him…We’re prepared to commit to getting him rehabilitation treatment. And I think he’s prepared to do it and I think that’s one of the biggest things, now that he’s admitted that he’s got a problem, he can actually face those issues with clarity…he always had very good help, but he just chose, in a lot of ways, not to accept that help. But I see a completely different person now that is willing to ask for help.”[94]
[94] Transcript, page 60, lines 12 to 15, 19 to 24 and 35 to 38.
However, there is no expert evidence before the Tribunal in relation to the Applicant’s resolve to stay connected to his family. There is a primary difficulty in the lack of expert evidence before the Tribunal about the Applicant’s vulnerabilities and the risk that he will re-offend were he returned to the Australian community. For example, we find it concerning that, while ODD has been put forward by the Applicant as a “precipitating factor” to his offending[95], and while he concedes that he has not yet fully come to terms with his ODD and its effect on his behaviour[96], that evidence is not corroborated by any independent and expert opinion explaining how the condition impacts on him and how it affects his efforts at rehabilitation.
[95] Exhibit A2, Applicant’s bundle of further evidence intended to be relied on, Statement of Mitchell Scarlett, paragraph 33.
[96] Ibid.
The Tribunal’s duty under sub-paragraph 13.1.2(1)(b) is to assess “The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending” [emphasis added].
It is, to our minds, most unfortunate that the available information and evidence required by 13.1.2(1)(b) does not include an expert assessment of the Applicant’s risk of re-offending. Put simply, apart from evidence from the Applicant, his family and written material they have adduced, there is nothing before the Tribunal from an independent and expert clinician (1) identifying the Applicant’s psychological symptomatology; (2) its impact on the Applicant’s propensity to offend in future; and (3) confirmation that those symptoms are the subject of remedial management, treatment and control.
We make this observation in terms of objectively assessing the available evidence with regard to the Applicant’s risk of re-offending. The absence of such evidence is not to be construed as any form of critique or complaint about the manner of the presentation of the Applicant’s case before us. On the contrary, we can only compliment the Applicant’s legal representative who presented the Applicant’s case in her usual exemplary manner based on the materials before the Tribunal. In the absence of such expert evidence, however, we are compelled to base our assessment on future risk of re-offending only on the material available to us.
The Applicant claims to have gained a level of insight into his drug use and resultant offending. He says that he feels remorse for the emotional and physical pain he caused his ex-partner. He claims that he now realises how much he has lost as the result of his offending including the trust of loved ones, his relationship with his ex-partner and employment opportunities. He speaks of a growing understanding of his mental health issues, and that he now has an increased level of awareness due to the rehabilitation courses he has undertaken.[97]
[97] Exhibit A1, Applicant’s SFIC, paragraph 72(d).
While the Applicant’s claims of insight and remorse could be seen as a self-serving attempt to avoid removal from Australia, it is also possible that incarceration, the loss of a significant relationship, the death of a friend due to a drug overdose, his family’s deep disappointment, and the very real risk of deportation jointly comprise the “wake up call” he claims he has experienced.[98] These factors may also be responsible for his asserted insight, remorse and commitment to living a drug free and crime free life. As mentioned earlier, the difficulty with such contentions is that none of them are corroborated by independent and expert evidence.
[98] Transcript, page 15, line 25.
The nearest document/witness giving the Tribunal any measure of comfort that those contentions are sustainable is to be found in the evidence of Ms Raewyn Burton, Director of Community Support for Pacific Connect & Support Inc. (“Pacific Connect”). Ms Burton has provided both a written report and oral evidence.
While Ms Burton did not claim to be an expert or relevant mental health professional, she impressed as a sensible and sincere witness who has engaged with the Applicant concerning his offending and efforts at rehabilitation on a regular basis over the previous 11 months. In her statement she summarised the function of Pacific Connect as follows:
“During our visits, we engage inmates/detainees and give opportunity for them to communicate issues which positively and/or negatively impact them. Our aim is to promote a healthy and safe emotional environment for all stakeholders. We also greatly advocate for and undertake family support in the community.
We believe that being supported is significant to the positive growth and well-being of offenders, assisting them to recognise and strengthen their identity, promote participation in Courses and Training, undertake Programs to address their offending behaviour, re: establish links between inmates, families and the wider community for the reintegration of offenders upon release. We offer and refer clients to culturally appropriate programs and support services, for individuals & families.”[99]
[99] Exhibit A2, Applicant’s bundle of further evidence intended to be relied on, Statement of Raewyn Burton, page 77.
Specifically, in relation to the Applicant, Ms Burton said the following:
“After a few weeks of Mitch choosing to attend our support sessions, we started to see positive change. Mitch eventually became very open with us regarding his life; acknowledging his past mistakes; his need to better himself and how to work alongside us to set him on a path to do that.
Mitch makes no excuses for his behaviours and is willing to seek out ways to further benefit his rehabilitation.
…
During this process of being incarcerated, Mitch has gained some genuine understanding of the impact that his offending has had on his family. (We normally have difficulty getting younger offenders to acknowledge this in our support work.)
…
One of the greatest obstacles we experience in the support that we provide in prison, especially with men, is the ability to get them to open up and engage. Over the time that we have been engaging him (near 10 months), Mitch has been able to open up and identify many areas which have been of concern to him about his life, his family and what he would like to do to better himself and those around him
…
I believe Mitch has learned a lot through the process he has come through, and he is committed to making a better life for himself, and particularly people in the community who are battling through issues that he has come through.”[100]
[100] Exhibit A2, Applicant’s bundle of further evidence intended to be relied on, Statement of Raewyn Burton, pages 78 and 79.
In her oral evidence Ms Burton said she rarely gives evidence on behalf of prisoners. She relevantly said the following:
“I refuse to be, you know, talking about someone who doesn’t know and identify what they’ve done especially around acts of violence and particularly domestic violence and drugs. A big part of that is them sharing and being open and honest about that and then wanting to get that rehabilitation pathway underway…[101]
So if he didn’t show remorse and if he wasn’t able to get a grip of what had happened, what he’d done, the impact on the victim and the impact on the Australian community, the impact on his family, the flow on effect of everything that he’s done I wouldn’t be here today. You know, I’m very straight with the men and women that we deal with that I’m in the Australian community and that I would like to see people, you know, in the Australian community who are in a pathway to getting help, if that’s what they identify. I don’t want to be at risk, I don’t want my children to be at risk or, you know, my family.[102]
[101] Transcript page 67, lines 27 to 32.
[102] Transcript page 68, lines 1 to 9.
When asked “...and has he talked to you about his understanding of the impact on his victims?” she replied:[103]
“Yes. Yes, that’s something that brings a lot of shame and a lot of pain and gradually, you know, that’s been an unfolding thing.”
[103] Transcript, page 68, lines 16 and 17.
When asked by the Respondent’s solicitor about her observations of the Applicant in detention, she said:[104]
“… I won’t be here in this court and [the Tribunal] would know that, I don’t come here very often. And the ones that I stand with are the ones that I really do believe and I have seen come through these processes and learned their lesson, which is a corrective strategy, which is, you know, exactly where you want them. And this coming through this pathway does really make that difference where we have seen many offenders that do make that connection back to family and back to whatever it may be culture, maybe it be who they are. And when they’re given that chance they literally take off and do amazing things for themselves, their families, and for the community.”
[104] Transcript, page 70, lines 29 to 38.
We accept that the Applicant has, by choice, engaged with Pacific Connect over an 11 month period. We regard Ms Burton’s evidence to the effect that (1) the Applicant does have insight into his offending and (2) is serious about living drug free and crime free, to be compelling.
The Applicant says he has demonstrated his commitment to rehabilitation by completing a drug and alcohol course, an anger management course, and the “Do It” program - all while incarcerated or in immigration detention - and by contacting community rehabilitation organisations to initiate a plan for when/if he is released.[105] We accept that the Applicant has undertaken those courses. Further, the materials before us contain a letter from Lives Lived Well offering “free case management support for individuals impacted by drug and/or alcohol misuse, in addition to mental health concerns where applicable” and “psychological support”.[106]
[105] Exhibit A1, Applicant’s SFIC, paragraph 71.
[106] Exhibit G1, Section 501 G-Documents, G18, page 80.
Ms Burton’s evidence about the Applicant’s determination to re-define his life and curb his propensity to abuse illicit drugs and to offend is, to our mind, corroborative of the Applicant’s own evidence to this effect when he says:[107]
“Now that I have to [sic] tools to manage my anger and my triggers to drug use, and with the ongoing assistance of various community support organisations I am currently in contact with, I am sure that I will not offend again.
I will never use a drugs [sic] again, because I do not want to risk sliding down the slippery slope into addiction, nor inflict pain or harm on to anyone, let alone a partner.
I have now experienced firsthand, through my current incarceration, how much drugs can mess up a person’s life.”
[107] Exhibit A2, Applicant’s bundle of further evidence intended to be relied on, Statement of Mitchell Scarlett, page 9, paragraphs 5 to 7.
There seems little doubt that Ms Burton and the organisation she represents have persuaded and will continue to direct the Applicant towards an understanding of the factors causative of his offending. We are inclined to accept that the Applicant has understood the error of his ways and is now determined to take the required measures to abstain from abusing illicit drugs if released into the community.
The sword of Damocles is undeniably held above the Applicant’s head. Ms Burton’s evidence confirms that he has at least that much level of insight into his offending. Consistent with his own evidence, Ms Burton’s evidence was that the Applicant knows only too well that were he to re-offend, two results are extremely likely:
1he will be squarely in breach of his parole conditions and such that he would find himself at serious risk of being returned to criminal custody; and
2the Respondent Minister will have the capacity to re-commence the visa cancellation process, and the Applicant would thus find himself in precisely the same position as he is now.
Should the Applicant re-offend, have his visa mandatorily cancelled, and again find himself contesting a mandatory visa cancellation decision, we think his prospects of successfully arguing for the re-instatement of his visa at such future application will have doubtless been compromised by his failure to refrain from offending or serious conduct were he to be given a second chance via this application.
Were the Applicant’s visa to be re-instated, he would be returned to the community and find himself compelled to strictly observe the conditions of his parole for a further 8-9 months until approximately October/November 2020. He confirms that his nominated parole address will be that of his parents’ home at Springfield[108] and would thus be compelled to reside with those whom he identifies as his “…key support system…”[109] .
[108] Exhibit A2, Applicant’s bundle of further evidence intended to be relied on, Statement of Mitchell Scarlett, page 10, paragraph 16.
[109] Exhibit A2, Applicant’s bundle of further evidence intended to be relied on, Statement of Mitchell Scarlett, page 11, paragraph 17.
The Applicant cannot be said to be a habitual offender who is used to a life of crime: he is a young man of 22 years and his offending has been isolated to two specific periods in his life. If returned to the Australian community, he will have the benefit of a lengthy period of supervision and support, including (presumably) drug testing as part of the regime of parole conditions with which he must strictly comply and which are also intended to aid his rehabilitation and to militate against him returning to a pattern of offending that has landed him in his current difficulties.
Were he to re-offend, the consequences of doing so will be – for reasons outlined earlier – exponentially worse for him than what he has experienced thus far. Put simply, while he may have his visa returned to him pursuant to this application, any future offending is likely be met with an identical revocation decision which, in turn, will be exponentially more difficult for him to set aside in any future similar application.
We have taken into account the following negative elements arising from the evidence:
(a)the lack of expert evidence about the Applicant’s prospects of rehabilitation;
(b)the fact that the Applicant’s offending only stopped when he was incarcerated:
(c)the fact that the Applicant’s resolve to abstain from drugs and bad influences has not been tested in the broader community; and
(d)the fact that, despite having a loving and supportive family around him, the Applicant distanced himself from them and abused illicit substances which was directly causative of his offending
We have weighed the above four elements against the following elements:
(a)the Applicant’s acceptance of the very serious nature of his offending and its impact on his ex-partner;
(b)his understanding of the extremely adverse effect of illicit drugs on his capacity to distinguish right from wrong and how this has led to his offending;
(c)the Applicant’s remorse for his offending;
(d)the absence of a lengthy criminal history that would indicate habitual offending;
(e)the Applicant’s success in overcoming behavioural problems once before, albeit as a juvenile, with the support of his parents;
(f)the re-connection between the Applicant and his family, his parents’ commitment to supporting him, and his recognition of the critical importance of him respecting and maintaining the close relationship he has with them;
(g)the efforts the Applicant has made towards rehabilitation and the efforts he says he will continue to make, including his engagement with Ms Burton and Pacific Connect;
(h)the Applicant’s almost competed plastering trade qualification, and his good prospects of securing employment;
(i)the unavoidable reality that, if released back into the community, he will be subject to a lengthy period of parole until approximately October/November 2020; and
(j)the further and quite feasible reality that the Respondent would re-commence the mandatory visa cancellation process in the event any further offending by the Applicant triggered the operative effect of the mandatory visa cancellation provisions in the Act.
Having regard to the totality of the above factors, we are of the view that the Applicant’s history of offending suggests that his risk of re-offending is directly linked to his capacity to remain drug free. There is no independent and expert opinion upon which to safely find that the Applicant’s predilection towards illicit drugs has been controlled or is otherwise managed.
The state of the evidence is such that, at best, the Applicant’s prospects of remaining drug free can only be predicated on the basis of him staying within the realm of his identified “key support system” comprising his parents and older sister and, as demonstrated in the oral evidence, Ms Burton and her Pacific Connect organisation. Accordingly, we cannot safely make a finding that the Applicant’s risk of re-offending is low. We consider his risk of engaging in further criminal or other serious conduct to be moderate.
Conclusion: Primary Consideration A

The Applicant does have a work history in this country. He is within sight of completing his plastering trade qualifications. His time in this country has seen him undertake work as a labourer and an apprentice plasterer.
His personal circumstances form is silent about any contributions he may have made to the broader Australian community either as a volunteer or by way of participation in community and cultural activities.
The Applicant’s very serious unlawful conduct and resulting criminal history – across just seven or eight years in this country, in particular his very violent offending in a domestic context - has surely breached the expectations of the Australian community. His offending, while not consistently committed across its span of time, has involved a concerning spike in both intensity and seriousness as is represented in the significant cumulative period of custodial terms imposed upon him during the 2019 calendar year.
His offending (punished in calendar year 2019) is clearly demonstrative of a failure to abide by the laws of Australia. In ascertaining the weight attributable to this Primary Consideration C, we take into account the following factors and/or findings:
(i)given his relative youth, the Applicant has made minimal positive contributions to the Australian community;[130]
(ii)prior to his incarceration in January 2019, the Applicant has lived in the mainstream Australian community for approximately seven or eight years;[131]
(iii)the removal of the Applicant may have an adverse impact on his immediate family members in Australia;[132]
(iv)the initially serious, but then very serious, nature of the Applicant’s offending to date, most notably towards his former domestic spouse;
(v)the unresolved nature of the issues pre-disposing him to offend, in particular, the lack of current, independent and expert evidence (1) addressing the factors giving rise to his propensity to offend, and (2) measuring the level of the Applicant’s insight into the nature and severity of his offending;
(vi)our finding of a moderate likelihood that he will engage in further offending or serious conduct if returned to the Australian community; and
(vii)our assessment of the significant risk of substantial and even catastrophic harm to the Australian community were he to re-offend.
[130] The Direction, paragraph 6.3(7).
[131] The Direction, paragraph 6.3(5).
[132] The Direction, paragraph 6.3(7).
Conclusion: Primary Consideration C
We are of the view that the above factors, read as a whole in the context of this case, militate in favour of not revoking the cancellation of the Applicant’s visa. We accordingly find that this Primary Consideration C is of heavy, but not determinative, level of weight in non-revocation decision under review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. We will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant has not claimed to fear harm if returned to New Zealand. None of the evidence suggests a risk of harm in those circumstances. This consideration is not relevant to the determination of this application.
(b) Strength, nature and duration of ties
The following submissions are made by the Respondent:[133]
40The applicant first visited Australia briefly in 2009 and early 2011 before initially starting to reside in Australia from 2 December 2011 with his mother, step father and two sisters.
41The Minister contends that less weight should be given to this factor where the applicant began offending three years after arriving in Australia at 17 years of age…
42To the extent that this consideration weighs in favour of revocation, the Minister contends that it does not outweigh the protection and expectations of the Australian community which weigh heavily against revocation.
[133] Exhibit R1, Respondent’s SFIC, page 10, paragraphs 40 to 42.
The following submissions are made on behalf of the Applicant:[134]
[134] Exhibit A1, Applicant’s SFIC, page 14, paragraphs 90 and 91.
90It is submitted that in circumstances where:
(a)both prior to engaging in the criminal conduct and after being arrested, the Applicant has positively contributed to the Australian community by exhibiting a strong work ethic and maintaining purposeful and meaningful employment (third year apprentice);
(b)the Applicant’s immediate family are all long term residents of Australia with the intention of continuing to make Australia their home permanently; and
(c)the effect of non-revocation on the Applicant’s immediate family in Australia;
this consideration should weigh strongly in favour of exercising the discretion.
91It is also submitted that the gravity of this consideration is best understood in view of the absolute lack of ties in New Zealand.
The Applicant was born in August 1997. He first came to Australia in April 2009 for a brief period as an 11 year old. His family moved to Australia on a permanent basis in December 2011 when he was aged 14 years. He is presently 22 years of age. It can fairly be said that he has spent 14 of his 22 years in New Zealand. Of the approximately eight years he has spent in Australia, he has been in criminal custody and/or immigration detention on a continuous basis for a little over one year and one month (i.e. since approximately mid-January 2019).
The Applicant has spent the majority of his life in New Zealand, but all of his adult life in Australia. His offending history commenced in November 2014 as a 17 year old. This is just over five years after his first arrival in Australia and three years after his family relocated to Australia, but before him attaining the age of majority. Having regard to paragraph 14.2(1)(a)(i) of the Direction, less weight should be given to this Other Consideration in those circumstances.
As against that, there is some evidence that he has made a minor contribution to Australia via his employment history, which runs from November 2016 to January 2019 that saw him employed as a “Labourer” and an “Apprentice plasterer”. This would attract some weight in his favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction. In the Applicant’s Personal Circumstances Form there is no reference to him making contributions to the Australian community as a volunteer for any cultural or similar event or activity.
To our minds, a greater measure of weight in favour of the Applicant pursuant to this Other Consideration B can be found in paragraph 14.2(1)(b) of the Direction. His Personal Circumstances Form reveals he has the following “…living parents, step-parents, brothers, sisters, and adult children”[135].
[135] Exhibit G1, Section 501 G-Documents, G20, page 34.

Full Name Relationship to You Date of birth Nationality Country of Current Residence

[Name redacted] Step-father 1976 New Zealand Australia

[Name redacted] Mother 1974 New Zealand Australia

[Name redacted] Sister (from the Mother’s first marriage) 1995 New Zealand Australia

[Name redacted] Step-sister (from the Mother’s marriage to the Applicant’s Step-father 2003 New Zealand Australia

The Personal Circumstances Form[136] also reveals the Applicant has the following “…close family members, including cousins, grandparents, uncles/aunts…”:
[136] Ibid.

Full Name Relationship to You Date of birth Nationality Country of Current Residence

[Name redacted] Niece 2017 Australian Australia

[Name redacted] Brother-in-law 1997 Australian Australia

The abovementioned niece born in 2017 is the daughter of the Applicant’s abovementioned sister born in 1995. That particular sister, according to the Applicant, “…is also due with another little girl in January.”[137]
[137] Ibid, page 127.
In response to the question in his Personal Circumstances Form: “Please state how many other relatives you have in Australia or overseas”, the Applicant has not listed a single person.[138] It is clear the Applicant has family ties of a certain strength and durability with Australian citizens, Australian permanent residents and/or people who have an infinite right to remain in Australia. Both his oral and written evidence speaks of the extent to which these strong family ties have crystallised into a supportive network for him:
“15. … I have a really strong support system waiting for me upon my release.
16. When I am released I will go and live with my parents at [street address redacted], Springfield, in the state of Queensland. This is my parole address so I would have to live there anyway but even if this was not the case I would have chosen to live there.
17. My parents and my older sister are my key support system, I have now learnt how to ask for, and accept, their help when I need it. In order to give myself the best shot at my complete rehabilitation, I know I need my parents close to me and their ongoing support and love.
18. Before I offended I pushed them all away, and refused their help. But now I have learnt to accept it, because refusing it will just hurt me and them.
19. Also, once I am released I plan to get straight back to my filed [sic] of work as a plasterer. I would also like to complete my apprenticeship eventually.
20. As I have said, I have cut off drug users in my friend group, and I will make sure I do not fall back into those groups. From here one [sic] I will keep my close friends and that is it.[139]
[138] Ibid, page 120.
[139] Exhibit A2, Applicant’s bundle of further evidence intended to be relied on, pages 10 and 11, paragraphs 15 to 20.
It is, however, noticeable from this offending history that when the Applicant was abusing illicit drugs, he pushed away and refused the help of those family members with whom he now professes to have strong and enduring ties and upon whom he relies for “a really strong support system”.
We are of the view that the strength, duration and nature of the Applicant’s family/social links with members of his immediate and extended family in Australia is such as to facilitate the allocation of a moderate level of weight in his favour for this Other Consideration (b) pursuant to paragraph 14.2(1)(b) of the Direction.
(c) Impact on Australian business interests
There is no evidence before the Tribunal that cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application.
(d) Impact on victims
The Respondent has not called any evidence relating to the impact that the Applicant’s continued presence in Australia would have on any of his victims – in this case, most notably, his former de-facto partner. In usual circumstances, a victim who experienced what his former de-facto partner experienced and endured consequent upon the Applicant’s offending, may well have had something quite negative to say about the impact of the Applicant’s continued presence in Australia would have upon her.
Uniquely for the purposes of this case, the Applicant’s former de-facto partner and victim of his very serious offending, has provided a statement in support of the Applicant. It is reproduced in full as follows: [140]
“…
Monday, 1 April 2019 6:31:28 PM
To whom it may concern,
I’m writing this character reference for Mitchell Robert Scarlett. We began our relationship on the 11^th of October 2014. Mitchell’s caring, compassionate and loving personality is what I fell in love with. Over the years I’ve tried to help Mitchell with mental health issues as he has tried to help me as well. We’ve grown up together and had many ups and downs and never spent more than a few days apart until now. I’ve watched Mitchell fall in with the wrong crowd, take up bad habits and watch him spiral downwards in the last year or so. Before Mitchell’s dependency on drugs he’d never physically hurt me in any way, shape or form. When originally pressing the charges my intent was never to punish Mitchell for how he had treated me it was to get him the help that he truly needs before it got any worse. He started distancing himself from his family, myself included and started self medicating his issues with drugs and becoming violent which was a side I had never seen in him before. When Mitchell is sober and with his family he is truely happy and the spark in him comes alive. The love he shares and the bond he has with his sisters and his niece is so genuine and I feel heartbroken and honestly terrified at the thought that he may be sent back to New Zealand with no support, starting from scratch without his family by his side. Mitchell has the most amazing work ethic and is an awesome contribution to society. He would literally give anyone the shirt off his back if they needed it he just needs support to get back to how he used to be. He now realises and has accepted this. I’ve never heard him sound so committed to truely mending his relationships with his loved ones and working on his mental health and addictions. He is so young, so impressionable and malleable. The change I’ve seen in him since the 18^th of January[141] is out of this world. This experience has been so awakening, eye opening and honestly terrifying. With the right support from family here, he could really have a great life and be a great man again.
Sincerely,
[Name redacted]”
[Errors in original]
[140] Exhibit G1, Section 501 G-Documents, G17, page 75.
[141] That is,18^th of January 2019.
To our minds, this Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e., where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). As mentioned, there is no evidence from any victim expressing fear or concern were the Applicant to remain in Australia. On the contrary, the plain words of the abovementioned statement from the Applicant’s former de-facto partner tells us she would “… feel heartbroken and honestly terrified at the thought that he may be sent back to New Zealand …”. She clearly is content with him remaining in Australia, because, according to her, “With the right support from family here he could really have a great life and be a great man again”.
We note two things about this evidence from the Applicant’s former de-facto partner. First, she did not give oral evidence at the hearing and the Respondent was thus denied the opportunity of testing her evidence in cross-examination. Thus, her evidence must be received with a measure of caution, unique and extraordinary as it is, given the circumstances what she ensured as a result of the Applicant’s very serious offending against her. Second, her statement does not bear her signature. Once again, the absence of oral evidence from her failed to cure this defect in her statement.
Having regard to the totality of the evidence relevant to this Other Consideration (d), particularly that of the Applicant’s former de-facto partner, we are of the view that it weighs moderately in favour of revocation.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant says these things about impediments he will face if returned to New Zealand:
“Impediments to returning to New Zealand
21. I do not think I will be able to cope if I am sent back to New Zealand.
22. My family and friends who support me and that I love, all live in Australia
23. My apprenticeship, and therefore my work, is also in Australia.
24. My mental health issues and learning issues are really challenging, and I am only able to work through them with the support of my family and friends.
25. I am scared that if I got sent back to New Zealand, I would not be able to work on my mental health while finding accommodation and a new job.
26. I am really close with me family, and they genuinely provide me with heaps of day-today support. If I am sent back to New Zealand, I will suddenly be stripped of my emotional support, but also me practical support when it comes to reading and writing.
27. In Australia, I know I have to tools to successfully rehabilitate, so I am certain that I will not relapse.
28. Despite the fact that I am determined to never use again, I am not certain I could be okay if I am deported back to New Zealand. I would have a criminal record, no contacts, reading and writing difficulties, and no place to live. I also could not receive the practical and emotional support I need from my family virtually.
29. I would be unable to attend family events, birthdays and Christmases, which is devastating for me and my family. My nieces would lose their uncle, and my mum would be even more stressed than she is now (which is the most stressed I have ever seen her).
30. I am really scared about being deported. I am really young, and my family and friends are here. Australia is the only place I consider home.”[142]
[142] Exhibit A2, Applicant’s bundle of further evidence intended to be relied on, pages 11 and 12, paragraphs 21 to 30.
The Applicant is a young man off 22 years of age. In response to the question in his Personal Circumstances Form about “Do you have any diagnosed medical or psychological conditions?” the Applicant ticked the “Yes” box.[143] He refers to a condition known Oppositional Defiant Disorder.[144] In this form he adds that he takes medication known as “Zoloft” and that this medication is prescribed to him for “Anxiety”. It is reasonable to find that the level of medical care and governmental/social support in New Zealand[145] is at or about the same level as that currently available to the Applicant in Australia. Treatment for the condition(s) and access to the medication nominated by the Applicant will both be available to him in New Zealand in the context of what is generally available to other citizens of that country. Thus, the Applicant’s age and state of health, while worthy of being noted, are not factors that attract any measure of weight to this Other Consideration (e).
[143] Exhibit G1, Section 501 G-Documents, G20, page 125.
[144] Section 14.5(1)(a) of the Direction.
[145] Section 14.5(1)(c) of the Direction.
There are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in New Zealand.[146] New Zealand is culturally and linguistically similar to Australia. While we note the Applicant’s lifelong difficulties with acquiring necessary reading and writing skills but do not think he will face insurmountable linguistic or cultural barriers were he compelled to return to New Zealand. To the extent he may face some difficulty in re-establishing himself in New Zealand, this would only present as a short-term hardship and would not preclude his successful re-settlement there.[147]
[146] Section 14.5(1)(b) of the Direction.
[147] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
We are cognisant of this Applicant’s relatively young age and his relatively vulnerable psychological state. We can place it no higher than being “cognisant”. This is because there is no contemporary, independent psychological or psychiatric opinion before the Tribunal to reliably inform us about the extent to which (1) the Applicant would suffer psychologically if removed and (2) the extent to which his symptoms will prevent him from re-settling in New Zealand.

As against that, it is notable that the Applicant does have an employment history in Australia both as a labourer and as an apprentice plasterer. He is near the end of his multi-year plastering apprenticeship. There is little evidence in the material to cavil with the Respondent’s contention that “… there is no evident impediment to the Applicant finding similar work in New Zealand.”[148]
[148] Exhibit R1, Respondent’s SFIC, page 12, paragraph 52.
Having regard to the totality of the evidence, we are thus of the view that this Other Consideration (e) weighs heavily? in favour of the Applicant with reference to determination of this application.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, are they outweighed by Primary Considerations A and C which, when combined, are of determinative weight in favour of revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: not relevant;
·strength nature and duration of ties: weighs moderately in favour of revocation;
·impact on Australian business interests: not relevant;
·impact on victims: weighs moderately in favour of revocation; and
·extent of impediments if removed: weighs moderately in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, we have had regard to the considerations referred to in the Direction. We find as follows:
·Primary Consideration A weighs heavily, but on its own, not determinatively, in favour of non-revocation;
·Primary Consideration C weighs heavily, but on its own, not determinatively, in favour of non-revocation;
·However, the combined weight of Primary Considerations A and C is of determinative weight in favour of non-revocation;
·Primary Consideration B weighs slightly in favour of revocation; and
·We have outlined the weight attributable to the Other Considerations. We do not consider that any of them, even when combined with each other or with Primary Consideration B, outweigh the combined and determinative weight we have attributed to Primary Considerations A and C.
A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, we cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 185 (one hundred and eighty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis and Member Arends

..............................[sgd]..........................................
Associate
Dated: 21 February 2020

Date of hearing:

6 February 2020

Solicitor for the Applicant:

Ms Jennifer Samuta
Samuta McComber Lawyers

Solicitors for the Respondent: Mr Matthew Hawker
Sparke Helmore Lawyers
ATTACHMENT A - EXHIBIT REGISTER
File No      2019/7918
Between     Mitchell Scarlett
And            Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Heard on    Thursday, 6 February 2020
At               Brisbane

EXHIBIT

DESCRIPTION OF EVIDENCE

G1

Section 501 G-Documents received 13 December 2019 (Paged 1 to 173)

R1

Statement of Facts, issues and Contentions dated 23 January 2020 (Paged 1 to 12)

R2

Bundle of extracted summonsed Records received 23 January 2020 (Paged 47 to 53)

A1

Applicant’s Statement of Facts, issues and Contentions dated 13 January 2020 (Paged 1 to 16)

A2

Applicant’s bundle of further evidence intended to be relied on received 3 February 2020 (Paged 1 to 87)

A3

Information relating to the support organisations particularised in the Applicant’s SFIC received 3 February 2020

Full Name	Relationship to You	Date of birth	Nationality	Country of Current Residence
[Name redacted]	Step-father	1976	New Zealand	Australia
[Name redacted]	Mother	1974	New Zealand	Australia
[Name redacted]	Sister (from the Mother’s first marriage)	1995	New Zealand	Australia
[Name redacted]	Step-sister (from the Mother’s marriage to the Applicant’s Step-father	2003	New Zealand	Australia

Date of hearing:	6 February 2020
Solicitor for the Applicant:	Ms Jennifer Samuta Samuta McComber Lawyers
Solicitors for the Respondent:	Mr Matthew Hawker Sparke Helmore Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE
G1	Section 501 G-Documents received 13 December 2019 (Paged 1 to 173)
R1	Statement of Facts, issues and Contentions dated 23 January 2020 (Paged 1 to 12)
R2	Bundle of extracted summonsed Records received 23 January 2020 (Paged 47 to 53)
A1	Applicant’s Statement of Facts, issues and Contentions dated 13 January 2020 (Paged 1 to 16)
A2	Applicant’s bundle of further evidence intended to be relied on received 3 February 2020 (Paged 1 to 87)
A3	Information relating to the support organisations particularised in the Applicant’s SFIC received 3 February 2020