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

[2022] AATA 724

SKKW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 724 (16 March 2022)

Division:GENERAL DIVISION

File Number:          2021/10274

Re:SKKW  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Rebecca Bellamy

Date:16 March 2022

Date of Written Reasons:      12 April 2022

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), on 16 March 2022 the Tribunal set aside the decision made by the delegate of the Respondent dated 22 December 2021 and exercised the discretion contained in section 501CA (4)(b)(ii) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant’s visa.

..............................[SGD]..........................................
Member Rebecca Bellamy

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. 90 – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth)

CASES

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

FYBR v Minister for Home Affairs [2019] FCAFC 185

Minister for Home Affairs v Buadromo [2018] FCAFC 151

SECONDARY MATERIAL

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Member Rebecca Bellamy

12 April 2022

THE ISSUE BEFORE THE TRIBUNAL

1. The Applicant is a 26 year old citizen of New Zealand. In April 1998 when he was two years old, he moved to Australia. The most recent visa granted to him was a Class TY Subclass 444 Special Category (Temporary) visa (“visa”).[1]

   [1]     Exhibit G1, G2 page 186.

2. On 18 February 2021, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[2] In March 2021, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[3] On 22 December 2021 the Respondent decided not to revoke the cancellation.[4]

   [2]     Exhibit G1, G2 pages 192 to 199.

   [3]     Exhibit G1, G2 pages 47 to 49.

   [4]     Exhibit G1, G2 page 11.

3. The Applicant subsequently lodged an application for review in this Tribunal on 30 December 2021.[5] The Tribunal has jurisdiction to review that decision pursuant to

   
   

   s 500(1)(ba) of the Act.

   [5]     Exhibit G1, G21 pages 1 to 6.

4. The hearing of this application took place on 3, 4 and 8 March 2022. The Applicant, his partner, his father and two friends gave evidence by videoconference. Professor James Freeman gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.

   LEGISLATIVE FRAMEWORK

5. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

   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.

6. I am satisfied 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. If either of paragraphs (i) or (ii) are satisfied, I should revoke the original decision.[6]

   [6]     Minister for Home Affairs v Buadromo [2018] FCAFC 151.

   Does the Applicant Pass the Character Test?

7. 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”.

8. On 8 February 2021, the Applicant was sentenced to concurrent terms of imprisonment with a head sentence of two years and six months and a parole release date of 6 August 2021. 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.[7] Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

   [7]     See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.

   Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?

9. 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 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.[8]

   [8]     On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.

10. For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of Part 2 of the Direction.

11. Those principles may be briefly stated as follows:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.

    (5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

12. Paragraph 6 of the Direction provides that:

    Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

13. Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account. They are:

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

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

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

    (4)expectations of the Australian community.

14. Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. They are:

    a)international non-refoulement obligations;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)links to the Australian community, including:

    i)strength, nature and duration of ties to Australia; and

    ii)impact on Australian business interests

15. Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.

    BACKGROUND AND OFFENDING

16. The Applicant commenced offending in March 2012 when he was 16 years old. The first recorded offences occurred between March 2012 and 16 July 2012 which were three breaches of bail conditions and wilful damage to property.

17. According to the Applicant, he experienced some physical violence and neglect when he was a child. He was moved around a lot as a child, attending five different primary schools and being looked after by different family members.[9] His father was, in the Applicant’s words, “always drinking” and he was not there to support him. His father, who is now sober, painted a more positive picture of the Applicant’s childhood but, considering all of the evidence, I accept the Applicant’s account. The Applicant admitted to having had a problem with drugs from a young age. He started using marijuana at the age of 15. He smoked it with other students in high school. His use gradually became heavier and he was skipping school. He thinks drugs became his way of self-medicating, dealing with difficult memories and depression. When he was around 16 years old, his parents sent him to live with an aunt in New Zealand to straighten him out but that did not work out as she was busy with work and her own children and had little time for him. Further, there were negative peers around.

    [9]     Exhibit G1, G2, page 73.

18. Back in Australia after a period of about six months in New Zealand, the Applicant was in and out of the family home until his parents made him leave when was around 17 years old. He conceded that they had tried talking to him about changing his ways but he did not listen.[10] He was homeless on and off for a couple of years. When he started living on the streets, he tried methamphetamine for the first time. He was using drugs and alcohol almost daily and he committed some crimes to fund his habit.[11] He said it was hard to sleep on the streets and there were cold nights. He was sleeping on the dirt under a bridge and the drugs helped him cope physically and mentally.

    [10]    Exhibit G1, G2, page 72.

    [11]    Exhibit G1, G2, page 73.

19. The Applicant committed a violent offence on 23 July 2012 when he assaulted an employee of a bottle shop. He was 17 years old at the time. The bottle shop was in the Roma Street Transit Centre. The Applicant was attempting to steal. The victim saw the Applicant behind the counter where the till was and asked him to move. The Applicant gave him the middle finger and said “I’m not going anywhere.” After the victim took a photo of the Applicant and told him to leave the store, the Applicant verbally abused him and called him a “mother f--ker.” The Applicant then attempted to steal a bottle of alcohol, but a customer took the bottle off him. The victim repeatedly told the Applicant to leave the bottle shop, and he then pushed him out of the shop. The Applicant shaped up to the shop assistant and said “F--k you bring it out here. Have a go mother f--ker” or words to that effect. The Applicant then tried to engage the victim in a fight. He jabbed the complainant and connected with his teeth, then unleashed a flurry of punches aimed at the victim’s eye. The victim managed to block most of the punches however, the side of his face was sore and swollen and his jaw hurt when he opened and closed his mouth. He also suffered a split lip. The Applicant threatened the victim and a security guard who had arrived, saying, “I’ll go, you two c--ts ...I'm coming back with my boys and you're both f--ked!”

20. The police located the Applicant later that day. He was highly intoxicated and agitated. He was transported to the police watch house where he continued behaving violently. He was charged and released on bail.[12]

    [12]    Exhibit R2, SM1, pages 12 to 15; SM2, pages 56 and 57.

21. The Applicant subsequently breached a condition of the bail order which prohibited him from going to, or remaining in, the Roma Street Transit Centre (unless travelling through by train) and the Southbank Parklands. He was seen in the vicinity of the bottle shop the day after the assault.[13]

    [13]    Exhibit R2, SM2 page 57.

22. Two days after the assault, the Applicant was caught in possession of a brass pipe that had been used to smoke cannabis. 

23. On the 28 July 2012, five days after the assault, the Applicant attacked and robbed a 25-year-old Korean national who was in Australia on a working holiday visa. The victim was walking through the Southbank Parklands, a well-known tourist spot in Brisbane. He grabbed the victim from behind and put him in a headlock, making it difficult for him to breathe. The Applicant punched the victim in the head with such force that it made him lose consciousness and he fell. While he was unconscious, the Applicant and a co-offender stole his wallet, his mobile phone and his backpack which contained his passport, his friend’s passport and some sunglasses. The victim sustained a lump and bruising to the right side of his head. The Applicant was apprehended some minutes later and all of the stolen property except the friend’s passport was recovered. The Applicant was too intoxicated to be interviewed. He was remanded in custody until he was granted bail on 30 July 2012.

24. On 9 August 2012 the Applicant was sentenced to a period of good behaviour for three months for the possession offence.

25. While on bail for the assault and while subject to the good behaviour bond, the Applicant continued to commit offences including failures to appear and breaches of bail conditions.

26. He also continued to commit other offences including stealing, receiving stolen property, possession of tainted property, shoplifting, and obstruct police. Despite periodically being sentenced for his offending, including being given another good behaviour bond followed by a suspended sentence of imprisonment in January 2013, he continued to offend. Ultimately, in March 2013, the suspended sentence was fully invoked but he was released immediately on parole with a probation period of 18 months.   

27. On 13 May 2013 the Applicant was sentenced in the Magistrates Court for the assault and the violent robbery as well as some of the offences mentioned above. The remarks of the learned sentencing Judge included the following:

    “I’m sentencing you today for a large number of offence, which include two very serious violent offences: a robbery and an assault occasioning bodily harm. You were only 17 years of age at the time you committed these offences and you still have not yet turned 18.

    …

    On your behalf, I have been informed about your background, about the support you have from your family, who no doubt have been very concerned and troubled by you over the past few years, and about the fact that, during the period of your offending, you had basically moved yourself away from them and were living on the streets.

    This year, you have taken some steps towards rehabilitation. With the guidance of your father, you have attended BoysTown and undertaken a 10 week fresh start program and you have attended some counselling sessions as well. You have a goal to undertake some further training and counselling when you are released from custody…

    I have determined, having regard to the nature and seriousness of the two main offences and the number of offences, that terms of imprisonment for the robbery offence and the assault occasioning bodily harm are warranted and that you must serve a further period of time before you are released back into the community. But having regard to your extreme youth, your please of guilty and cooperation and the amount of rehabilitation you have undertaken, that period will be somewhat shorter than it would otherwise have been.”[14]

    [14]    Exhibit G1, G2 pages 38 to 39.

28. The Applicant was sentenced to two years imprisonment for the robbery which was suspended for two years after serving four months. For the assault occasioning bodily harm, he was sentenced to four months imprisonment with a two-year probation period. He was not further punished for the other offences.

29. While the Applicant was in prison, in June 2013, he was notified that his visa could be cancelled due to his offending. He responded to that notification by filling in a form and returning it. On 1 November 2013, he was notified that his visa would not be cancelled and he was given the following written warning.

    “[The Applicant] has committed serious and violent offences. In doing so, he has caused his visa to come under s501 consideration. This time, he has narrowly avoided having his visa cancelled. [The Applicant] needs to focus fully on reforming his behaviour, so that he can fit in to the community. If he commits further crimes, his visa will most probably again be considered under s501. If that happens, his visa could be cancelled. [The Applicant] would then be removed from Australia, never to return.

    Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.”[15]

    [15]    Exhibit G1, G2 pages 179 to 180.

30. The letter also said:

    “Please note also that if you seek to re-enter Australia, you will be subject to a character check at the border and your criminal history may result in you being refused entry into Australia, depending on your circumstances.

    Some Australian government forms (including the Incoming Passenger Card completed when entering Australia) contain questions about criminal convictions and outstanding charges. It is important that you answer these correctly, declaring all criminal convictions and outstanding charges, as failure to do so would breach the law and could have serious consequences, including:

    • refusal of entry to Australia;

    • refusal of citizenship;

    • cancellation of your visa;

    • removal from Australia, and

    • criminal prosecution.”

31. In these proceedings, the Applicant claimed that he remembered getting some kind of paperwork or quiz when he was in prison, but he had just turned 18 and had been transferred into an adult men's prison and was struggling in a new and scary environment. He said, having lived in Australia since he was two years old, he considered himself to be Australian.[16]

    [16]    Exhibit G1, G2, page 78.

32. According to the Applicant, while he did not use drugs in custody, he used drugs after he was released from prison and he went back to being homeless.[17] He did some counselling and training with Brisbane Youth Outreach Services but he was not really motivated to change. He also thinks he did not have enough support at the time.

    [17]    Exhibit G1, G2, page 73.

1. The Applicant continued to offend including stealing (x 6), beg for money in a public place, contravene directions, possession of drugs, possession of pipes etc and failing to stop motor vehicle. On 21 January 2015 he received fines and 80 hours of community services for these offences. On 6 November 2014 he was sentenced for breaching the multiple judicial orders he was subject to including the probation order that had been imposed in March 2013, the probation order received for the assault and the suspended sentence for the robbery. The suspended sentence was extended by two months and the Applicant was placed on a 53 week probation period.

2. The Applicant had started seeing “Ms S” in 2013 although it was not serious. Their relationship appears to have become serious in late 2013, and he moved in with her and her parents around that time. He got a full-time job in around October 2014. He reconciled with his parents who had become very religious while he was in prison. The church helped his father give up alcohol. However, the Applicant said he was still being irresponsible on weekends, partying a lot, using drugs and being around the wrong sort of people.[18]

   [18]    Exhibit G1, G2, page 74.

3. In October 2015, the Applicant’s daughter, “Child A” was born. Shortly afterwards, Ms S found out that the Applicant was still associating with “the wrong people”. At that point, her parents had returned to New Zealand. She took Child A with her to stay with her parents in New Zealand and she told the Applicant that if he did not change, she and Child A would not come back.[19] She stayed with her parents for one to two months and she spoke with the Applicant every day. The Applicant, in her words, gave up drinking, partying and drugs during this time.[20] According to the Applicant, being separated from Ms S and Child A motivated him to stop using drugs. He wanted to know his daughter and to be part of her life. He stopped seeing the friends he had been associating with.[21] He said being a father made him grow up.

   [19]    Exhibit G1, G2, pages 94 to 98.

   [20]    Exhibit G1, G2, pages 94 to 98.

   [21]    Exhibit G1, G2, page 74.

4. From February 2015 to August 2019, the Applicant did not use drugs or re-offend. During that period, in April 2017, Ms S had another child. The Applicant kept himself busy with work and his children. He did not think about his past anymore; he let go of a lot of the resentment and did not feel tempted to use drugs. He described that period as the best time of his life, saying that he was “living the dream”.

5. In 2016, the Applicant, Ms S and Child A went to New Zealand for a short trip. On the return flight, the Applicant made a false statement in an Incoming Passenger Card (“IPC”). He ticked “No” to the question “Do you have any criminal convictions”.[22] In these proceedings, the Applicant claimed that he could not recall completing the card or why he ticked “No”. He expressed regret for having done it and claimed he had been honest about his criminal history with other people such as his team leader at one of his jobs.

   [22]    Exhibit G1, G2, page 185.

6. In August 2019, the Applicant lost his job.[23] After a couple of weeks he started using marijuana again. He did not use methamphetamine as he said it turned him into someone he was not – he thought it was where the violence came from – so he would never use it again. The Applicant was unemployed for around five months, constantly applying for jobs without success. Ms S was pregnant and could not get work either. She gave birth to their third child in November 2018. She is a New Zealand citizen who came to Australia in 2010. The only government income support for which she and the Applicant were eligible was the Family Tax Benefit.[24] The Applicant did not ask his family for help because of pride and because his parents and sister were also struggling financially. Nor did he tell Ms S that they had financial problems as he did not want to burden her.

   [23]    Exhibit G1, G2, page 74.

   [24]    Exhibit G1, G2, page 74.

7. The Applicant started associating with a different crowd of people, friends of friends, smoking and drinking together. They were also unemployed, and he saw them almost daily over a couple months.[25] Ms S did not know the Applicant was associating with drug users because he told her he was going to see friends that he worked with. He was not home much, he was hiding his drug use, and he now says he was a totally different person during this time. He stopped spending as much time with Ms S and the children.  

   [25]    Exhibit G1, G2, page 74.

8. In January 2020, the Applicant was offered $2,000 to conceal drugs, drug-related items, cash and weapons on behalf of others.[26] He accepted, and he hid those items in multiple locations around his home. On 16 January 2020 the police executed a search warrant of the Applicant’s house. The Applicant was at home at the time along with Ms S and their children. Ms S and the children were permitted to leave for the duration of the search.

   [26]    Exhibit G1, G2, page 74.

9. The police located the following items in the search:[27]

   [27]    Exabit R2, SM3 pages 79 to 80 and SM1 pages 28 to 29.

   ·quantities of cannabis totalling 8.45kg;

   ·cash totalling $68,205;

   ·1.484g of MDMA in clipseal bags;

   ·tablets of Valium and Diazepam without a script;

   ·a shortened shotgun and three taser cartidges;

   ·a glass pipe used for smoking cannabis;

   ·scales, a grinder, scissors and clipseal bags;

   ·a money counter, a cyrovac machine and cyrovac bags; and

   ·a firecracker.

10. The shotgun and some drugs were in an unlocked spare bedroom. In the hearing, the Applicant said it was a room only used by him, with a bed, games and a television, and that his children and Ms S never went in there. However, I find it most implausible that the two eldest children, a four year old and a two year old, could be relied on not to enter a room in their own home or that the Applicant had reason to believe that Ms S would never go in there and would make sure the door was shut at all times while those dangerous items were there. In the hearing, the Applicant claimed that the firearm was stored up high, but he conceded that there was no excuse for having those items around his children and that he felt sick about it.    

11. The Applicant was charged with a number of offences and released on bail.

12. According to the Applicant, Ms S was very disappointed and angry after he was arrested, but she told him she would stand by him if he turned himself around.[28] While he was on bail, he made some big lifestyle changes with the support of Ms S, his family and his neighbours.[29] Ms S helped him look for work and he got full-time employment, working six to seven days per week. According to Ms S, the Applicant worked hard to make sure their family would be provided for when he went to prison. The Applicant gave up marijuana while on bail. He used it on a few occasions to wean himself off, but he has been clean since February 2020. He cut all contact with his drug using associates. He spent all of his free time with Ms S and their children, and their neighbours (“Mr T” and his family). He also got some support from his parents’ church and they went to church events together as a family.[30]

    [28]    Exhibit G1, G2, page 74.

    [29]    Exhibit G1, G2, page 75.

    [30]    Exhibit G1, G2, page 75.

13. The Applicant described this period as being busy with work, “doing the family thing again”, and “living the dream again”. The Applicant and Ms S also joined a gym that had a child minder. This gave the Applicant a healthy way to deal with stress, and they met and made friends with other couples and families with children.

14. Despite his positive lifestyle during this period, the Applicant breached his bail conditions on multiple occasions by failing to report in time to the police station as required. He said it was because he was not organised, and eventually Ms S helped him by reminding him of the days he had to report.

15. On 8 February 2021 the Applicant was sentenced for five offences arising out of the search of his home. The learned sentencing Judge’s remarks when passing sentence included the following:

    “The total weight of all the cannabis located was 8.45 kilograms. There are also large quantities of cash. The total amount found was $68,205. The relevance of the cash to the conviction is that the possession was for a commercial purpose – something which isn’t disputed. The police also found 1.484 grams pure of MDMA contained in about eight grams of tablets. In the main bedroom, they found some Valium – Diazepam, without a script. They also found in the house a break action single-shot shotgun which had been shortened – which is a category 8 weapon – along with some cartridges. You declined to participate in your interview and were released on bail.

    The circumstances of the offending are very serious indeed…But in any event, what was important and emerged only today – although, there’s some suggestion it was mentioned to the Crown earlier – is this assertion by you through your counsel that you were in possession of all of this – drugs, cash, and weapons – weapon – at the request of a relative involved in an outlaw motorcycle gang, for which you would receive $2000.

    …The Crown hasn’t challenged the context of the offending. They haven’t disputed it. And on reflection it seems to me, on balance, likely to be true…Nonetheless, the offending is very serious….

    …

    I am willing to sentence on the basis that – as your fiancé said – this was something you did stupidly for some extra money for your family…it seems to me that the evidence before me objectively speaks to that being likely to be the truth.

    An important characteristic of this offending with which I was deeply troubled is the possession of the firearm…”

16. The Applicant was convicted and sentenced as follows: 

    ·possess shortened firearms – six months imprisonment; 

    ·unlawful possession of weapons category D/H/R weapon – nine months imprisonment;

    ·possess dangerous drugs specified in schedule 1 or 2 (x 2) – 12 months imprisonment; and

    ·possess dangerous drugs schedule 2 drug quantity of or exceeding schedule 3 – two years and 6 months.

17. All terms were to be served concurrently with an effective head sentence of two years and six months, with a parole release date of 6 August 2021.

18. On 2 March 2021 the Applicant was convicted of five further offences arising out the search of his home including possession of the ammunition and the firework, and the possession of the pipe and the other drug paraphernalia. He was not further punished for these offences. He was fined for five breaches of bail. He was also sentenced for “evasion offence type 1 vehicle related offence” to 50 days imprisonment with a parole release date of August 2021. His motor vehicle license was disqualified for two years.

19. The Applicant has been in immigration detention since he was automatically given parole in August 2021. His parole period will end on 7 August 2023.

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

20. In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or 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.

21. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(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

22. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction, relevantly, specifies that decision-makers must have regard to the following:

    (a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

    (i)violent and/or sexual crimes;

    …

    (b)…

    (c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

    (d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

    (e)the cumulative effect of repeated offending;

    (f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

    (g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

23. The Applicant committed some 55 offences in a nine-year period. Within that period there were two distinct periods of offending, separated by five years when the Applicant did not commit any offences. The first period of offending, which spanned around two and a half years, was associated with youth, drug abuse, a dysfunctional home life and homelessness. In that period, the Applicant offended frequently, and he committed two violent crimes. Both of those violent crimes are very serious. He punched his first victim several times and made threats to harm him again, and he knocked the second victim unconscious and robbed him. The fact that he was homeless and affected by alcohol, and it appears, drugs, does not excuse or mitigate the seriousness of that offending. There was not a trend of increasing seriousness only because the Applicant committed the violent offences relatively early in his crime spree. The cumulative impact was that he was a menace to the community, stealing and hurting people, and repeatedly breaching bail conditions.

24. Initially the courts dealt with the Applicant leniently with fines and non-custodial sentences but there came a point where he was sentenced to a suspended sentence of one month imprisonment (which he breached) and finally the District Court sentenced him to an effective sentence of two years imprisonment to serve four months. A custodial sentence is normally a sentence of last resort in the hierarchy of sentencing options available to criminal courts. The head sentences of imprisonment, and the periods the Applicant was required to serve, reflect the seriousness with which the court regarded the Applicant’s offending.

25. The second period of offending was really one episode that involved multiple offences. This occurred in the context of a drug addiction and unemployment, although the Applicant had a stable home and loving family. The learned sentencing Judge described the circumstances of the offending as very serious, and I respectfully agree. The Applicant concealed a large amount of drugs and cash that was presumably the proceeds of crime. By doing so, he facilitated in some way, drug trafficking. He knew, from his own experience, the harm the comes from cannabis use and methamphetamine use. He knew he was assisting people who were circulating those drugs in the community. Further, he secreted a firearm for nefarious people. While the Applicant was reluctant to admit it, the person for whom he was holding the items was a member of an outlaw gang, as the sentencing court found. Firearms can obviously cause terrible harm, including death, to victims, families and communities. Secreting a firearm for a gang member, precisely the sort of person who would use it to threaten or harm individuals in the Australian community, is very serious. The multiple sentences of imprisonment imposed on the Applicant speak to the seriousness with which the court regarded the offending.      

26. The Applicant re-offended after being formally warned in writing that his visa could be cancelled if he committed more offences. The Applicant did not tell his family or Ms S about the notices that said his visa could be cancelled or the second notice warning him that it could happen in future at the time. He competed the Personal Circumstances form to a bare minimum. The Applicant was only 18 at the time and my impression is that he is of humble intellect. I accept that he did not give much attention to, or appreciate the meaning of, the notices because of those factors.      

27. The Applicant provided false and misleading information on an IPC in 2016. The fact that he cannot recall doing it does not mean he did not knowingly do it. Nor does it assist him that he disclosed his criminal history to an employer. The particular question that he answered incorrectly is worded in very clear language. The IPC is a card that is handed to all incoming passengers, then furnished at immigration control. The Applicant had travelled to Australia from overseas before: he knew the process. I am satisfied that he knew the IPC was an official document, he knew what the question was asking, he knew the correct answer, and he gave an incorrect answer. This weighs against him.               

    The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

28. Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

29. In accordance with paragraph 8.1.2(2), in considering the risk to the Australian community, I must have regard to the following relevant factors on a cumulative basis:

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

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non- citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and

    Nature of harm should the Applicant engage in further criminal or other serious conduct

30. 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 properly informed by the nature of his offending to date.

31. Should the Applicant engage in further violent offending, the nature of harm includes short and long term physical and psychological injury. Further petty theft will result in financial loss and the violation of property rights. If the Applicant were to assist criminals involved in the drug trade to conceal their product, proceeds and weapons, then the harm is indirect and includes the well-known multifaceted harm and misery that is associated with drug use and the illegal drugs trade.   

    Likelihood of engaging in further criminal or other serious conduct

32. The Applicant acknowledged that his violent offending was serious, in fact he said all of his offending was serious. He expressed remorse and disgust about his offending. He said he has totally different morals to what he had when he was 17. He considers that he was very immature then and he did not care about the bad path he was on. When the Respondent rightly pointed out that incarceration and counselling did not stop him offending during that period the Applicant said things were different then as he had nothing to lose whereas now he is a father.

1. There is a marked contrast between the Applicant’s circumstances during the first period of offending and his circumstances now. It is clear that the biggest motivator for the Applicant to keep away from drugs and live a law-abiding, productive life is Ms S and their children. Further, he now has a positive, mutually supportive relationship with his parents.   

2. The Applicant has not committed offences of the kind he committed in the first period of offending since 2014. In particular, he has not committed any further violent offences.  In January 2022, he told Professor James Freeman, forensic psychologist, that he had impulsively struck a door in immigration detention after unexpectedly being denied a visit with his family as visits were cancelled in December 2021. He denied any acts of aggression towards others. I think this behaviour shows that the Applicant is still prone to impulsive acts that are not appropriate, and he displayed aggression. However, he directed his aggression to a door rather than a person. He also voluntarily disclosed to Professor Freeman which, I think, shows preparedness to hold himself accountable for his behaviour.   

3. The Applicant was first interviewed by Professor Freeman in June 2021 by video conference. Professor Freeman administered some actuarial scales for the purpose of assessing risk of re-offending. These scales take into account static (historical, unchangeable) factors and dynamic (capable of changing) factors. They are to be applied and interpreted in conjunction with the practitioner’s clinical judgment.

4. The Hare Psychopathy Check List (PCL-R) is a popular measure of psychopathy. Research has indicated that it is a reasonably accurate predictor of sexual and violent recidivism. It is widely considered one of the most effective predictors of reoffending. The Applicant scored below what the average prisoner scores. This scale indicated that the Applicant does not lack empathy, he is not anti‑social and he does not have pro‑criminal attitudes. The Violent Risk Appraisal Guide (VRAG) placed the Applicant in the “high” range for future acts of violence. On the other hand, the HCR-20 (Historical, Clinical and Risk Management Violence Assessment Scheme) indicated a low risk of future violent behaviour.

5. Professor Freeman pointed out that the VRAG is an older tool and that is heavily focused on static factors and, that being so, it can inflate a person’s risk of reoffending. Taking into account that the Applicant’s most recent violent offence was in 2013, Professor Freeman’s opinion was that violence is a thing of the past for the Applicant. He did not think the Applicant’s most recent (non-violent) offending affected his risk of violent reoffending. I note that the Applicant attributed his past violence to methamphetamine use, that he dislikes methamphetamine because of that, and he did not use methamphetamine when he relapsed into drug use in late 2019. Given all of the evidence, including Professor Freeman’s opinion, I think the risk of future violent offending is remote. 

6. The Applicant’s partner and children were not enough to keep him from resorting to drugs in 2019 and then to crime in early 2020. Nor were his other prosocial supports, such as his parents and neighbours. The Applicant now recognises how disastrous his choices were for Ms S and his children, and for himself. He said this last 12 months have been the hardest of his life because he has been separated from his children. He never wants to be separated from his children again. He also indicated some awareness of the social harm done by the drug trade.   

7. It is significant that the Applicant demonstrated immediate remorse by commencing his rehabilitation very shortly after being charged and granted bail. He gave up drugs and he stayed drug-free for around a year before he was incarcerated. He has been drug-free for a little over two years and he has been of good behaviour in prison and immigration detention. He said there was a lot of drug use, and there were fights and gangs, in prison but he kept away from it all. He was employed as a kitchen worker and he kept himself busy training three times a day. He has made many requests to see the psychologist and the drug and alcohol counsellor in immigration detention. He has had two sessions with a psychologist and he was told there was a six month wait for the drug and alcohol counsellor.  He spoke with the psychologist about drugs and alcohol and his criminal history, and about steps towards rehabilitation. He attended group classes on reintegration and anger management which appear to be open to anyone in detention. While the Applicant has done very little in terms of targeted programs or counselling for his drug addiction, Professor Freeman considered that he is able to articulate his high-risk situations and his strategies to avoid relapse or avoid those high-risk situations. Professor Freeman said essentially, that is the main goal of substance abuse programs.

8. Professor Freeman considered that, as the Applicant abstained from drugs for a year in the community in addition to the time he subsequently spent in prison and immigration detention, his drug dependency is in remission. The Applicant says he now realises he needs to express his feelings and ask for help. He found a healthy way to deal with stress, being exercise. His parents and close friends are now more aware of his history of drug abuse and crime than they previously were although they do not have detailed knowledge. They are not only willing to help the Applicant, they want to help him. 

9. Mr T, has been the Applicant’s neighbour since December 2018. He is gainfully employed with a partner and two young children who have been growing up alongside the Applicant’s children. He and the Applicant have a close friendship. He said that if the Applicant is allowed to stay in Australia, their friendship will continue and he will offer his support to the Applicant and his family.[31] He considers that the Applicant has changed a lot since the recent offending in that he is more receptive to help. He said he will do the best he can to make sure he stays on the right path. Mr T has some insight into the Applicant’s drug use as many years ago he was addicted to cocaine, convicted of a drug offence and given a suspended sentence, and he never used drugs or offended again.

   [31]    Exhibit G1, G2, pages 112 to 113.

10. Ms R has known the Applicant for over 15 years and while she does not appear to be related to the family, the children call her aunty. She thinks he has matured into a humble, hardworking, loving father and fiancé to his partner. She has discussed the Applicant’s most recent offending with him in terms of what was running through his mind and what had led him to live that sort of life. She believes the Applicant only wants to be with his family. She indicated that she wants to make sure that if the Applicant has any urges or if there is a risk of him “going down that pathway again”, she can help him to stop. She confirmed that she would speak to both the Applicant and Ms S if she had concerns about the Applicant’s behaviour and she does not ever want to see “this” again.

11. The Applicant’s father, “Mr B”, no longer drinks and he is part of a supportive church congregation. He said he has seen a great change in the Applicant. He communicates his fears and troubles. The Applicant is finally learning to talk to his parents about his problems.

12. Mr B said he and the rest of the family would ensure that the Applicant stays away from bad influences. After the Applicant’s arrest, he and his family began attending church with Mr B and his wife. They also attended social events and barbeques run by the church. The church has offered to set him up with a counsellor. Mr B and his wife are willing to support the Applicant to get professional counselling to rehabilitate and prepare him to better manage his family’s future.

13. Ms S considers the Applicant criminal actions to be unacceptable. She has told the Applicant that she will not tolerate any drug use or criminal activity around her or their children. She said as much as she and their children love him, they cannot go through this experience again.[32] She sees remorse and thinks he wants to make amends.[33] She said the Applicant apologised to her for what he has put her and her children through and she does not think he will do it again. He has shown some willingness to open up about any stress or problems he is facing so they can deal with it together, although she does not think he is fully there yet. She indicated that if she had any concerns about the Applicant, she would try to get him to talk to her about it and she would call on other people to help.

    [32]    Exhibit G1, G2, pages 94 to 98.

    [33]    Exhibit G1, G2, pages 94 to 98.

14. I asked the Applicant if he respects Ms S’s opinion and if she was able to influence him. He said yes, she has influenced his behaviour in the past and he likes that she pulls him into line, keeps him down to earth and tries to help him to be a better father, a better partner and a better person in general. Ms S has already made efforts to assist the Applicant in his rehabilitation, reminding him of his bail reporting conditions and going to the gym with him, and I think she will continue to do that. She has recently started working and she plans to keep working if he gets his visa back, probably part-time. Ms S working is likely to take some financial pressure off the Applicant.  

15. Ms S is now able to identify the signs of drug use based on how the Applicant behaved in 2019 when he was using cannabis. However, I am not completely confident that, with four small children to look after, Ms S would immediately know if the Applicant was using drugs or associating with antisocial people. Further, I am concerned that Ms S’s primary objection to the Applicant’s drug use and offending relates to the impact on her and her children, and she seems unconcerned with the impact on the community. The Applicant’s aggression in immigration detention when denied a family visit shows that his devotion to his family is capable of cutting both ways. I do not think that the Applicant’s devotion to his family, in the absence of an ethical code is sufficient. In that regard, the Applicant expressed disgust and regret about all of his offending and I think he was genuine. He talked about values and morals. His parents consider criminal offending to be unacceptable and they have arranged for their church to assist the Applicant. Mr T, despite his historic drug offence, impressed me as a person who respects the law. Further, I am confident that these people are committed to keeping a close eye on the Applicant and helping him stay on course.   

16. I am satisfied that the Applicant has an offer of employment in the event that he gets his visa back. He wishes to take that up, live with Ms S and their children, maintain his health and fitness and keep as busy as possible.[34] He said he will not use marijuana or any other drugs again.[35] He will be on parole until August 2023 and he believes that the if he uses drugs or breaches any of his parole conditions he will go back to prison.[36] He wants to do drug counselling in the community.[37] 

    [34]    Exhibit G1, G2, page 77.

    [35]    Exhibit G1, G2, page 77.

    [36]    Exhibit G1, G2, page 78.

    [37]    Exhibit G1, G2, pages 80 to 81.

17. Professor Freeman said the Applicant consistently accepted responsibility for his offending behaviour and that he appeared to have sufficient levels of insight and self-awareness. He noted a vulnerability to engage in impulsive and reckless behaviours with reduced consideration for the consequences. However, he thought the Applicant had a sufficient level of insight into the extent of his substance abuse and the link between his substance abuse and offending history. He also articulated a strong commitment to avoid relapse and contact with his past support group, which is reflected in his release plan. According to Professor Freeman, the Applicant needs lifestyle stability such as employment, a roof over his head, a stable relationship with his partner and contact with his children. He further needs to avoid negative peers. He thought if the Applicant did all of those things, his prognosis for the future could be considered much more positive. Professor Freeman further thought parole would be a significant protective factor in the sense that the Applicant will be required to report on a weekly basis, he would also be subject to urine testing, and the Applicant believes that any lapse would result in him returning to prison.

18. I find that there is no more than a remote risk that the Applicant will engage in violence in the future. I find that there is a low, but material, risk that he will relapse into drug use and consequently engage in non-violent offending for financial gain.       

    Conclusion: Primary Consideration 1

19. Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

20. There is no evidence that the Applicant has engaged in family violence. This Primary Consideration is not relevant.  

    PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

21. Paragraph 8(3) of the Direction compels a decision-maker to consider the best interests of a minor child in Australia. Under paragraph 8.3(1), I must determine whether non-revocation under section 501CA is or is not in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ

22. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

    ·     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    ·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    ·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

    ·     whether there are other persons who already fulfil a parental role in relation to the child; and

    ·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).

23. The Applicant has four minor biological children in Australia with Ms S. They are all relatively young with the oldest daughter, Child A, currently aged six years. There is a son, “Child B”, aged four years and another daughter, “Child C”, aged three years. The youngest son, “Child D” is aged 10 months and was born after the Applicant was incarcerated.

24. Until February 2021, the Applicant lived in the family home with Ms S and the three older children. Ms S was a full-time parent. According to her, even though the Applicant worked a full-time job he always came home and helped out around the house doing the laundry, dishes, vacuuming and cooking dinners. She said the Applicant never just came home to relax: he always did something with the children even though he was tired. She described him as a loving, nurturing father and a good partner, always respectful, he never yelled and he always helped her.   

25. The Applicant made time to care for and teach the children. He was with them if they were ever sick, getting vaccinations, doing swimming lessons or on their first days at daycare or school. He enrolled the children in schools and made doctor's appointments for vaccinations. The Applicant normally picked the children up from school or daycare as he finished work at 2pm.

26. According to the Applicant, in summer, the family spent almost every weekend at the beach together. He taught Child A and Child B to fish, and he and Ms S went for family walks with their children almost every day. He taught Child A and Child B to ride bikes. The Applicant assisted in disciplining the children, correcting their behaviour and imposing sanctions such as taking devices away.

27. Ms R said the Applicant goes above and beyond for his children, and he is a helpful and supportive partner to Ms S. Mr T recalled that when he was a new father, he needed a lot of advice about what to do, and that watching the Applicant with his children helped a lot. He was a workaholic but he took the Applicant’s advice that family comes first.

28. I accept that, when the Applicant was not using drugs, he was an engaged, loving father to his three older children, prioritising them and looking after them financially, practically, developmentally and emotionally. I accept that he genuinely loves all of his children and wants to do his best for them. 

29. Since the Applicant has been in custody, he has spoken with his children every morning before they go to school/daycare and in the afternoon when they come home. He has also had visits from Ms S and the children. He has seen his youngest child during a visit. I accept that the Applicant has maintained a consistent presence, albeit not physical, in his children’s lives since he was incarcerated. 

30. In the Applicant’s absence, Ms R spends a lot of time visiting and occasionally sleeps over, and the Applicant’s parents and Ms S’s cousin help with the children. Ms S has recently started working full-time and the Applicant’s parents do school drop-offs and pick-ups, and they mind the children every second weekend. Ms S is too busy for the usual trips to the beach and walks with the children.

31. There is strong evidence, that I accept, that the two older children miss the Applicant a great deal. Child B has nightmares that the Applicant is not coming home. Ms S and the Applicant’s father reported that Child A and Child C are exhibiting some concerning behaviour which they each suggested was due to the Applicant’s absence. Ms S believes that her children’s mental health would be affected if the family were split up. It does not appear that Ms S has enquired into whether the behaviour is typical in terms of the developmental stages her children are at or environmental factors, or that she has sought counselling or other treatment in relation to the behaviour. There is no expert evidence to the effect that the Applicant’s absence is causing psychological issues and I do not accept that it is. However, I do accept that the two older children are suffering some emotional hardship and that all four children would be significantly better off if the Applicant were in their home devoting his time and attention to them and their mother. They are all young and there are many years in which the Applicant can make a positive contribution to their respective childhoods.      

32. Both the Applicant and Ms S claimed that Ms S could not relocate to New Zealand with the children if the Applicant did not get his visa back because it would not be safe. Ms S claimed that when she was a teenager she was in a relationship with a gang member and she was raped by another member of that gang. She claimed to fear that this person would harm her or her family if she returned to New Zealand. She said in a sworn statement that after reporting the rape the police kept her in their custody for her protection before escorting her to a plane to Australia, and that her parents moved to Australia to be with her.

1. While I accept that Ms S was raped, she did not adequately explain why she feared retribution and she gave inconsistent evidence as to who she feared it from – the rapist, her former boyfriend or both. Her evidence was incomplete, ever-changing, irrational, confusing and overall implausible. Very late in Ms S’s oral evidence, it emerged that she had committed offences in New Zealand, part of her bail conditions were that she leave New Zealand, and her parents had made a deal with the New Zealand police that her record would be “wiped” if she left New Zealand and did not return while still a minor. Also, her parents were already living in Australia – she lived with her grandparents in New Zealand. Accordingly, the written evidence she gave under oath about the circumstances of and reasons for her departure from New Zealand was very misleading. 

2. There is no evidence that Ms S or any of her family in New Zealand have ever been threatened. Ms R gave evidence that Ms S had expressed anxiety to her about returning to New Zealand in relation to trauma from her past and not feeling safe. I do not doubt Ms R’s account of what Ms S told her, but I find that what Ms S reportedly told her to be at odds with her decision in 2015 to leave Australia where she was safe and spend over a month in New Zealand with Child A. I suspect Ms S said those things to Ms R for the benefit of these proceedings. I do not accept that Ms S, or anyone in her family, would be in any danger from anyone in New Zealand or that she genuinely believes that she or her family would be in danger.

3. I find that if the Applicant’s visa is not returned to him, he and Ms S would have the option of keeping their family together in New Zealand. If they were to all relocate, the children would be separated from the Applicant’s parents with whom they are close, and from the Applicant’s sister and her children with whom they spend considerable time. The family as a whole would be without that close support network. In this sense, moving to New Zealand would be detrimental to all four children. Staying in Australia, without the Applicant, would be more detrimental for the reasons I have given, despite the possibility that the Applicant could maintain contact with his children by telephone and electronic means as he does now and the fact that Ms S and the children would likely visit the Applicant in New Zealand.   

4. The Applicant has two minor nephews and one niece. They are the children of his sister. The two nephews, aged 12 and eight, are the sons of the Applicant’s sister and her previous partner and their care is split between both parents. The Applicant has a good relationship with his sister’s ex-partner, and he is welcome in their home. The niece, aged seven, is the daughter of the Applicant’s sister and her current partner. The Applicant’s sister provided a letter of support but she did not mention any impact of the Applicant’s absence on her children. Nor do I have any evidence from any of the children.

5. These children used to spend time on weekends and in school holidays with the Applicant’s family. The Applicant said that, therefore, if he is deported the children will not see each other as much. However, the children currently spend time at the Applicant’s parents’ home in school holidays and at other times and they see the Applicant’s children there. Additionally, the Applicant’s sister said the children often get together at her home. I am satisfied that this would continue unless the Applicant’s children move to New Zealand with him.

6. The children each have their two respective biological parents caring for them, along with their maternal grandparents. The Applicant never fulfilled a parental role and there is no suggestion that he would ever be called upon to do so. He can communicate with the children from New Zealand. If the Applicant were deported and his children accompanied him, then his sister’s children would no longer be able to spend time with their cousins with whom they are close, which would be to their detriment. I allocate some weight, albeit minimal, in relation to the impact of the Applicant’s removal on the best interests of these children.

   Conclusion: Primary Consideration 3

7. Taking into account the best interests of the children mentioned above cumulatively, this Primary Consideration weighs in favour of the revocation of the cancellation of the Applicant’s visa to a moderate degree. 

   PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

   The relevant paragraphs in the Direction

8. Paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. It further stipulates that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.

9. Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa.

10. Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

11. Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

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

12. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR  v Minister for Home Affairs [2019] FCAFC 185.

    Analysis – Allocation of Weight to this Primary Consideration 4

13. Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:

    ·the Applicant moved to Australia when he was two years old. He is now 26 years old;

    ·his childhood was unstable and marred by neglect in the context of his father having an alcohol dependency;

    ·the first offence for which the Applicant was prosecuted was committed by him when he 16 years old;

    ·the Applicant has engaged in serious offences, the most serious being a violent robbery, an assault and possession of drugs, proceeds of crime and a firearm;  

    ·while he stored the drugs, cash and firearm in an attempt to alleviate financial problems, the fact that he stored a firearm for a gang member demonstrates that when he is dependent on drugs, he has a level of disregard for the safety of members of the Australian community;

    ·there is a low risk of reoffending in general and a negligible risk of further violent offending;

    ·the Applicant has contributed to the Australian community through gainful employment and payment of income tax;

    ·over a four year period from 2015 to 2019, and during a year while on bail, the Applicant led a drug-free, law-abiding, productive lifestyle. I believe he genuinely prefers that way of living of itself, not only because he does not want to be visited with the legal consequences of offending; and 

    ·if he is removed to New Zealand, it will adversely affect his partner and children and to lesser extents, his parents, his sister and his sister’s children.  

    Conclusion: Primary Consideration 4

14. Considering all relevant factors, Primary Consideration 4 weighs moderately in favour of non-revocation of the cancellation of the Applicant’s visa.   

    OTHER CONSIDERATIONS

15. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).

    (a) International non-refoulement obligations

16. The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.  

    (b) Extent of Impediments if Removed

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

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

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

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

18. The Applicant is a 26 year old man who is able bodied and in good health. There is no evidence to suggest that he would experience any substantial language or cultural barriers, or that he would be unable access social, medical and/or economic services in New Zealand.

19. The Applicant has a solid employment history in Australia, and he holds a Certificate Ill in Fitness, a Certificate Ill in Business, a Certificate II in Retail and a Certificate Ill in Warehouse Operations. I am satisfied that the Applicant has good employment prospects in New Zealand.  

20. Professor Freeman conducted a follow up assessment with the Applicant in February 2022 in which he diagnosed him with an adjustment disorder which he thought stemmed directly from the emotional stress associated with his current situation.[38] He noted the Applicant’s comment “If I can’t live without my kids, I think I might do something stupid. I’m scared of the person I might become without them, and also my mental health and whatever.” He predicted that if the cause of the adjustment disorder was removed, the disorder would resolve.

    [38] Exhibit A3, pages 2 to 7.

21. Professor Freeman was asked how removal to New Zealand would affect the Applicant’s mental health. His answer appeared to be based on none of the Applicant’s family accompanying him to New Zealand, which is consistent with what he was told. Professor Freeman said most probably, the symptoms associated with depression would intensify tremendously, the Applicant would feel helpless and hopeless, and he could be at risk of engaging in some impulsive behaviours. When asked if the Applicant’s risk of relapse would he higher, he said it would depend on a lot of issues and he could not predict what would happen.

22. According to Professor Freeman, adjustment disorders can be treated with psychotherapy, counselling and medication. He expects that those treatments would be available in New Zealand. He indicated that lifestyle stability would be determinative in whether the effects of an adjustment disorder would dissipate over time. On the other hand, he considered that if the symptoms continued and remained consistent over time, the Applicant would have a Major Depressive Disorder.

23. The Applicant’s parents said they would not be able to move to New Zealand as their home, their daughter and her children are all in Australia. I accept that.

24. The Applicant has some extended family in New Zealand, including his aunt, her six children and her four grandchildren. He is not in contact with them, but he did not indicate that they are estranged. Ms S’s parents, three of her grandparents, two younger half-brothers, a cousin, and an aunty all live in New Zealand. They have all met the Applicant. Ms S was asked if her family in New Zealand would be willing to support the Applicant, for example, emotionally, financially or to find work. She said “Honesty, yes, like, if they had to”. Accordingly, the Applicant would not be entirely alone and unsupported in New Zealand.

25. Further, I do not accept that Ms S and their children could not move to New Zealand, in fact, I think it is likely that they would, given the important role the Applicant has in that family unit. I accept that being separated from his parents, sister and close friends like Mr T and Ms R, would make life harder for the Applicant as he and Ms S would not have their practical or emotional support. In the unlikely event that the Applicant were to find himself alone and separated from Ms S and his children, I accept it would be emotionally devastating, however he could access mental health treatment and he could continue to use exercise to help deal with stress as he currently does. His drug dependency is currently in remission and has been for two years.

26. I am not satisfied that the challenges and adversity that I have noted would make it impossible for the Applicant to establish himself and maintain basic living standards in New Zealand. 

27. This Other Consideration (b) weighs to a limited extent in favour of revocation of the mandatory cancellation.

    (c) Impact on victims

28. There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (c) is therefore not relevant.

    (d) Links to the Australian Community

29. In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:

    ·the strength, nature, and duration of ties to Australia; and

    ·the impact on Australian business interests.

    The strength, nature, and duration of ties to Australia

30. The Applicant came to Australia at the age of two and lived in the wider Australian community for 24 years before he was incarcerated in early 2021. Accordingly, he has lived here for most of his life. His first recorded offence was committed some 14 years after moving to Australia.

31. The Applicant completed school to Grade 10. Prior to 2014, he did some casual work and training through recruitment agencies. Between October 2014 and August 2019, he was employed full-time as a factory hand and machine operator. While on bail he was employed as a full-time (five to six days per week) machine operator from February 2020 to May 2020. When that company had to close operations because of the pandemic, he found alternative employment. His previous employer contacted him around January 2021 and asked him to come back, however he was incarcerated in February 2021. I am satisfied that the Applicant has a solid employment history, that he has demonstrated a strong work ethic and that he contributed to the community through work and payment of income tax. It does not appear that he has done any voluntary work in the wider community.  

32. The Applicant has established some strong social links in the Australian community including Mr T and Ms R. He has some more recent friendships with his other neighbours and with couples and families who attend his gym. 

33. The Applicant’s parents, sister, two nephews, niece, cousin, partner and four children live in Australia. They all have the right to reside here permanently.  

34. Ms S has lived in Australia since 2010 and she regards Australia as her home. She said the Applicant has been her rock and provider since 2015 when her parents returned to New Zealand. In the Applicant’s absence, with the pressure of raising four children on her own, she has become depressed and stressed. She has been prescribed anti-depressants for the first time. She does not think she will be able to cope on her own. Currently, her cousin, the Applicant’s parents and Ms R help with the children. The Applicant’s parents also help with cooking and cleaning. They, the Applicant’s sister and her partner also help financially. Mr T helps by doing tasks like mowing the lawn. There is no suggestion that this help would not continue. I am satisfied that Ms S is coping with help from others, but it is a struggle that is causing stress and depression. I am satisfied that permanent separation from the Applicant would additionally cause emotional hardship and reduce her quality of life as she would not have his emotional, practical and financial support.

35. If Ms S and the children move to New Zealand with the Applicant, it will adversely impact Ms S as she does not want to live there and she will not have the considerable support that she has here from relatives and friends. Accordingly, if the Applicant is deported, Ms S will be faced with two options, both of which are against her interests.          

36. The Applicant’s sister said she has a very close relationship with him. They often used to see each other on a weekly basis for family meals with their parents and extended families. While he has been in custody they have regularly spoken on the phone. She described the Applicant as her rock during some of the hardest times in her life including when she lost a child to Sudden Infant Death Syndrome. The Applicant used to sometimes look after her children when she was working. I accept that the Applicant’s sister will miss the Applicant a great deal, and be without his practical support, if he is deported.

37. I accept that the Applicant’s relationship with his parents has improved and become closer in recent years since his father stopped drinking. I accept that he is a supportive son, for example when his mother was in hospital after she was diagnosed with breast cancer, he visited her every day and took her meals. She is currently in remission.

38. The Applicant’s mother had to give up paid work around ten years ago because of arthritis in her hands. She has been reliant on Centrelink payments ever since. She does volunteer work at Lifeline and the Salvation Army, and there is some prospect of the Salvation Army giving her a paid job. The Applicant’s father has one kidney and he suffers from issues with his back. He is also reliant on Centrelink payments. Both parents find it hard to get work because of their age and health but they are trying. According to the Applicant’s father they have, in the past received financial assistance from the Applicant.

39. I accept that the Applicant’s parents would suffer emotional hardship if he were deported. There is mutual financial and practical support between the Applicant and his parents, with him helping them when they are in need and vice versa. If he were deported they would be without his support. The Applicant’s father said he and his wife miss their grandchildren a lot if they do not visit them more than two or three days per week. I accept that. Accordingly, I am satisfied that if Ms S and their children were to accompany the Applicant to New Zealand, which seems likely. I accept that if the Applicant were to be deported his parents would suffer emotional hardship.

    Impact on Australian business interests

40. The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests.  

    Conclusion: Other Consideration (d)

41. Overall, I am satisfied that the Applicant’s links to the Australian community weighs heavily in favour of revocation.

    CONCLUSION

42. I am now required to weigh all of the Considerations in accordance with the Direction. This is a finely balanced matter in which the Considerations that favour revocation slightly outweigh the Considerations that favour non-revocation, and there is therefore another reason to revoke the cancellation of the Applicant’s visa. This is not a simple mathematical equation. There are certain relevant matters that stand out. One is my finding that there is no more than a remote possibility that the Applicant will ever commit a violent offence again and that there is a low risk that he will return to drug dependency again. The other matter is the overwhelming evidence that, when the Applicant is not using drugs, he is a hard worker and a devoted, attentive parent who plays a very important and positive role in the lives of his children who are members of the Australian community.  

    DECISION

1. The decision under review was set aside on 16 March 2022, and the Tribunal exercised the discretion contained in section 501CA (4)(b)(ii) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant’s visa.

I certify that the preceding 139 (one hundred and thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

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

Associate

Dated: 12 April 2022

Date of hearing:

3, 4 and 8 March 2022

Solicitor for the Applicant:

Ms Caitlin White

Fisher Dore Lawyers

Solicitor for the Respondent

Ms Emma Letcher-Boldt

Clayton Utz

ANNEXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G10 paged 1 to 290)	R	-	12 January 2022
A1	Applicant's Statement of Facts, Issues and Contentions (paged 1 to 20)	A	2 February 2022	2 February 2022
A2	Applicant’s Reply (4 pages)	A	23 February 2022	23 February 2022
A3	Applicant’s Additional Evidence (23 pages)	A	-	23 February 2022
R1	Respondent’s Statement of Facts, Issues and Contentions (20 pages)	R	14 February 2022	14 February 2022
R2	Summonsed Material (SM1 to SM3, paged 1 to 124)	R	-	14 February 2022