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

[2022] AATA 996

Smith and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 996 (4 May 2022)

Division:GENERAL DIVISION

File Number:          2021/5567

Re:Phillip Smith  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Rebecca Bellamy

Date:4 May 2022

Place:Brisbane

The decision under review is affirmed

..........................[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 – serious drug offending and lengthy traffic history – receiving country New Zealand – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

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

4 May 2022

THE ISSUE BEFORE THE TRIBUNAL

1. The Applicant is a 40-year-old citizen of New Zealand. In September 1999, when he was 17 years old, he and his family permanently relocated to Australia. He had previously spent some years as a child in Australia.

2. On 3 December 2018, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s Special Category (subclass 444) visa (“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.[1] On 2 January 2019, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[2] In July 2019, at his request, he was removed to New Zealand pending the outcome of is revocation request.[3] On 25 June 2021, the Respondent decided not to revoke the cancellation.[4]

   [1]     Exhibit G1, T23 pages 87 to 91.

   [2]     Exhibit G1, T12 page 53 to 57 and T13 pages 58 to 71.

   [3]     Exhibit G1, T22 page 85.

   [4]     Exhibit G1, T7 page 23.

3. The Applicant subsequently lodged an application for review in this Tribunal on 13 August 2021.[5] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.

   [5]     Exhibit G1, T2 pages 3 to 8.

4. The hearing of this application took place on 22 and 23 November 2021. The Applicant gave evidence via videoconference. The Applicant’s mother, father and Dr Gavan Palk, forensic psychologist gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.

5. There were some differences between the Applicant’s parents’ written evidence and the evidence they gave in the hearing which may be attributable to the documentary evidence having been prepared on their behalf rather than by them. Where there is a difference, I prefer the oral evidence.  

   LEGISLATIVE FRAMEWORK

6. 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.

7. 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?

8. 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”.

9. On 1 August 2018, the Applicant was sentenced to a term of imprisonment of five years, to be suspended for five years after serving 12 months. Accordingly, there is no doubt that het 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.

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

10. 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.[7]

    [7]     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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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

16. I note that 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

17. The Applicant was born in 1982. He first came to Australia in 1994 with his parents and two younger brothers when he was eleven years old. They lived in Australia for three years (taking short trips back to New Zealand) until 1996 when the family returned to New Zealand where the Applicant attended high school and he commenced a butcher’s apprenticeship. In September 1999, when the Applicant was 17 years old, the family permanently moved to Australia.[8]

    [8]     Exhibit A7, page 4.

18. The Applicant commenced committing traffic offences three months later when he was caught speeding by at least 15km/h but less than 30km/h on 9 December 1999. Between 1999 and 2014 he committed 40 more traffic infringements including:

    ·speeding (x 20) including 13 instances where he was driving at least 13km/h over the speed limit, one instance of driving at least 20km/h over the speed limit, one instance of driving at least 30km/h over the speed limit and a speeding infringement that breached a good driving period;

    ·seven instances of driving unlicensed, when his license was disqualified or when his license had expired;

    ·four instances of using a hand held mobile phone while driving;

    ·one instance of drug-driving; and

    ·one instance of “driver not have proper control of vehicle”.

19. The Applicant’s daughter, “Ms E”, was born in March 2001. The Applicant was not sure at the time whether he was her father. Ms E’s mother did not initially allow the Applicant access to her. When she was nine years old her maternal grandparents reached out and the Applicant developed a relationship with her.   

20. Between 1999 and 2004, the Applicant completed his butcher’s apprenticeship and worked as a butcher for various employers. At some point he started using cannabis followed by methamphetamine. The timeline given by the Applicant differs from the timeline given by his father, making it difficult to establish what happened when.

21. When the Applicant’s father, Mr Smith, was asked if the Applicant started using drugs between 1999 and 2004, he said “Yes, probably something like that, yes”. During that period, the Applicant injured his hand at work and was on workers compensation for three years. The Applicant said he then worked for his father’s business for around five years before helping to expand the business.[9] He disclosed employment with Halal Meats, a business operated by Mr Smith, from 2004 to 2010. Mr Smith gave evidence that his business initially supplied hotdogs and machines to service stations and later opened a factory to make the hotdogs. He said when he became aware of the Applicant’s addiction to methamphetamine, he was upset and frightened. He wanted the Applicant to have a second chance at life and to be away from negative influences. He opened a “meat factory” and had the Applicant work for him.[10] This business appears to be Ezy Foods where the Applicant claimed he worked from 2010 to 2015. He said the name of the business changed to Mad Butcher when it moved from a factory outlet to a shop.[11] He said he worked at Mad Butcher too. It seems that, according to Mr Smith, he knew of the Applicant’s drug use in around 2004 and that he became aware of his methamphetamine use in around 2010.    

    [9]     Exhibit A7, page 5.

    [10]    Exhibit A5.

    [11]    Transcript, page 26.

22. Of the period when the Applicant worked for Mr Smith, Mr Smith said his drug use was initially quite well hidden. When he hired other butchers “it was the little giggly stuff and then all of a sudden two or three of them would disappear and you know, I was finding stuff around the factory” which I take to mean Mr Smith found items he associated with drug use.[12] He believed that the other butchers were encouraging the Applicant in his drug use. Mr Smith dismissed those employees and hired employees who he believed did not, and would not, use drugs because of their particular culture.[13] This does not appear to have helped in the long run as the Applicant continued to use drugs.  

    [12]    Transcript, page 90, lines 1 to 6.

    [13]    Transcript, page 90, lines 20 to 24.

23. According to the Applicant, his work at Ezy Foods was on and off.[14] He explained that because of drug use he would take time off then he would return to work when his father needed help, then they would end up arguing. He said “so employment was on and off and my addiction had just gotten worse”.[15] While the Applicant said he worked at Mad Butcher from 2015 to 2016,[16] the other evidence indicates it was only until 2015. According to Mr Smith, the Applicant would “come, we'd have a blow up - he'd be gone again”. He came to work late and openly argued with Mr Smith in front of other staff.[17] Mr Smith said the Applicant’s addiction was far beyond what he thought, and he had no choice but to stop him from working in the factory.[18]  

    [14]    Exhibit T1, T13 and Transcript, page 26.

    [15]    Transcript, page 26.

    [16]    Exhibit T1, T13 page 68.

    [17]    Transcript, page 90, 38 to 39.

    [18]    Exhibit A5.

24. The Applicant said he started using cannabis when he was 27 years old, which would have been sometime after March 2009, and he started using methamphetamine (colloquially known as “ice”) in 2012.[19] The Applicant was caught in possession of cannabis in June 2008 (see below) so he must have started his cannabis use before the age of 27.

    [19]    Exhibit A7, page 6; Transcript, page 24, lines 10 to 14. 

25. I found that the Applicant engaged in some impression management in his evidence, for example he overstated the frequency of his communication with Ms E and he initially gave the incorrect impression that he only started selling drugs after being threatened over drug debts. In contrast, his father impressed as very candid, although he seemed to have a hazy memory of events that occurred many years ago. I find that the Applicant was using drugs, although to what extent is not known, sometime before 2004. There were then some years when the Applicant was on workers compensation. I find that Mr Smith took the Applicant on in Ezy Foods (the meat factory) in 2010 in an effort to stop his methamphetamine use.            

26. On 13 January 2005 a Domestic Violence Order (“DVO”) was made against the Applicant for the protection of his ex-partner and her sister. The order was to expire on 12 January 2007.[20] In the hearing, the Applicant said he had tried to contact his ex-partner about retrieving his belongings that she had taken but she would not respond. He went to her sister’s residence and had a loud argument with a male housemate at the gate. The housemate claimed the Applicant was waiving a knife but that was not true. The Applicant considered that his ex-girlfriend was not genuinely fearful but got the order to stop him from returning to the residence.[21]

    [20]    Exhibit R2, R5, page 176.

    [21]    Transcript, page 17, lines 1 to 15.

27. Between 3 September 2005 and 4 January 2006, the Applicant contacted his ex-partner’s sister by text message 57 times. He also left a letter to his ex-partner on her car when it was parked in front of her work. On 13 January 2006 the ex-partner’s sister made a complaint to the police. When questioned by the police, the Applicant said he was not aware that his ex-partner’s sister was also named in the order. He admitted to having sent the text messages and said he did so because he wanted to know how his ex-partner was coping after their break up. He said he left the letter on her car to let her know how he felt. He said he had no intention to harass her, and he was worried about her welfare. When further questioned he said he could see how he had breached the order, but he did not think he was doing so at the time because they did not have face-to-face contact.[22] On 24 February 2006, the Applicant was convicted and fined $200 for breaching the DVO.[23]

    [22]    Exhibit R2, R5, page 176.

    [23]    Exhibit G1, T8, page 44.

28. In his revocation request, the Applicant said he sent angry and, he now realises, intimidating text messages to his ex-partner requesting his furniture and belongings be returned to him after having moved out.[24] He must have been referring to messages he sent before the DVO was made as the breach of the DVO related to texts he had sent to the sister. In the hearing, the Applicant said he was young and silly and just wanted to get his belongings back.[25]  

    [24]    Transcript, page 17, lines 22 to 24; T12, page 56.

    [25]    Transcript, page 17, lines 22 and 23.

29. On 14 June 2008 the Applicant was found in possession of dangerous drugs, being cannabis. In July 2008 he was put on a good behaviour bond for four months and ordered to do drug diversion. In the hearing, he said the drug diversion consisted of a 20 minute counselling session. At that time, he had not intended to use cannabis anymore, but he now thinks it was a coping mechanism for depression and he was self-medicating, however he was getting more and more depressed. He said he did not smoke cannabis at work, only after work.   

30. There is a document that was provided by the Queensland Police entitled “Summary of Domestic Violence Orders and Conditions”.[26] That document contains the Applicant’s details along with information concerning a protection order that was made on 24 January 2011. It is not apparent on the face of the document whether the protection order was made for the Applicant’s protection or to protect someone else from him, although it contains the notation “Aggrieved: Hist – Child < 17” which could suggest that the aggrieved was a minor child and therefore the order was made against the Applicant. There is no information in the records indicating why the order was made.

    [26]    Exhibit R2, R4, page 30.

31. In the hearing the Applicant said he was not aware of any protection order apart from the order that was made in relation to his ex-partner. He said the only thing he could think of to explain this document was that at around that time he had allowed a 16 year old girl to live with him as she had been thrown out of her family home. When he asked her mother to collect her, she refused to leave. She “caused a big scene, kicked holes in the wall and stuff, and then the police took her away back to her mother's”.[27] He thought any protection order that was made would have been protecting him, rather than her. He denied that he had been in a relationship with her. When asked if there was anybody who could support his account, he said his father could as he knew what had happened at the time.[28]

    [27]    Transcript, page 20, lines 33 to 41.

    [28]    Transcript, page 21, lines 12 to 15.

1. The Applicant, when asked about this document, seemed genuinely unaware that it could appear that a protection order had been made against him. Accordingly, it seems unlikely that he would have colluded with his father about it before the hearing. His father was expected to give his evidence immediately after the Applicant’s, making it unlikely that the Applicant would have thought he would have the opportunity to tell his father on what to say. Mr Smith was an honest witness, and the Applicant knows his character. I think it likely that the Applicant indicated that his father would corroborate his evidence because his evidence was true. As it happens, the Applicant’s father was not asked about this matter. While I accept that a protection order was made against the Applicant in 2011, there are no details as to what the Applicant allegedly did to warrant the making of the order. Given his explanation, I am not satisfied that he did anything violent or threatening.

2. According to the Applicant, he started smoking methamphetamine because his work as a butcher involved long hours and pressure.[29] Mr Smith confirmed that working as a butcher is onerous and the hours are long. I accept this. The Applicant said he was introduced to methamphetamine by a colleague to help him with the long hours. At that time, he did not consider his drug use to be a problem, describing it as controlled use. He mostly smoked it on Thursday to Sunday which were the days he worked longer hours, to keep himself awake.

   [29]    Transcript, page 7, lines 8 to 14.

3. The Applicant said his drug use became a problem in early 2015 because issues started to arise at work and his father told him to leave. His drug use escalated and he “pretty much straightaway” started selling drugs to live and to support his dependency. He indicated that if he got some for other people it was cheaper or free for him.[30] According to his father, on more than one occasion he saw the Applicant heavily bruised from being beaten up over drug debts. Also, on more than one occasion men came to Mr Smith’s home demanding he pay the money to settle the Applicant’s drug debts. Mr Smith did pay so they would not do what they threatened to do to the Applicant.[31] The Applicant’s mother corroborated Mr Smith’s evidence. She added that the Applicant had no choice but to start selling drugs to keep his addiction funded and to ensure that the debt collectors would not physically hurt their family.[32] I accept this evidence, except that I do not accept that the Applicant had no choice but to sell drugs.   

   [30]    Transcript, page 42, lines 16 to 20.

   [31]    Exhibit A5.

   [32]    Exhibit A6.

4. Between January 2015 and May 2018, the Applicant came to the attention of the police on numerous occasions. He was convicted of multiple offences arising from his possession of dangerous drugs and drug related paraphernalia. 

5. Around March 2015, the Applicant completed a five day drug detox program run by the Salvation Army. He did this of his own volition. He learned about comping mechanisms and found it helpful. The detox program was supposed to be followed by a six or twelve month residential rehabilitation program but the Applicant was unable to get a bed. He looked at other options but he could not afford them - even though he was selling drugs he did not make much money from that and he was always in debt. [33]

   [33]    Transcript, pages 29 and 30.

6. The Applicant’s father was also looking for rehabilitation programs for the Applicant but they were very expensive and he could not afford them at the time.[34] In the hearing, the Applicant was asked if he had considered Narcotics Anonymous. He said he needed something that would take him away from the situation he was in whereas Narcotics Anonymous was just weekly meetings.[35] 

   [34]    Transcript, page 91, lines 1 to 18.

   [35]    Transcript, page 30, lines 40 to 44.

7. After the detox program the Applicant returned to the same place he had been living because of a relationship he was in, and the same friends, and after around a week he reverted to drug use.

8. On 5 December 2015, the Applicant purchased a caravan from a friend for $5000, knowing it was stolen.

9. On 10 December 2015, the Applicant was convicted of drug-related offences and sentenced to 12 months of probation. However, he continued to offend during the period of probation. On 9 January 2016, he was arrested and remanded in custody in relation to his possession of dangerous drugs and drug-related paraphernalia. On 5 February 2016 he was sentenced to 28 days imprisonment, and released immediately, taking into account the time that he had already served.

10. On 11 May 2016 the Applicant was caught again in possession of illegal drugs. He was charged with several offences including two counts of trafficking in dangerous drugs and six counts of supplying dangerous drugs. He was remanded in custody.[36] On 18 May 2016 he was convicted of possessing dangerous drugs and sentenced to imprisonment for four months with immediate release on parole. He was also dealt with for unlawfully possessing a controlled drug and not further punished.[37] The other charges were not dealt with. The Applicant returned to the wider community where he was on parole for the possessing dangerous drugs charge and on bail for the outstanding charges. He lived with his mother and continued to smoke methamphetamine until around three weeks before he was ultimately incarcerated in August 2018.[38]

    [36]    Exhibit R2, R1, pages 1 and 2.

    [37]    Exhibit G1, T8.

    [38]    Transcript, page 35, lines 24 to 26.

11. A probation report dated 20 November 2017 records that the Applicant regularly engaged with a psychologist during the period of the probation order and completed a relapse prevention plan with the psychologist which he provided on 9 December 2016 (the end of his probation).[39] In his evidence the Applicant indicated that he was still around methamphetamine and still using it.[40]

    [39]    Exhibit R2, R1, page 1.

    [40]    Transcript, page 33, lines 15 to 19.

12. The Applicant claimed that in 2017 he was no longer selling drugs and his methamphetamine use was more under control. He also found employment.

13. On an unknown date between 20 April and 6 May 2017, the Applicant committed “burglary and commit indictable offence”. He claimed that he and an associate entered a house that was not being lived in. He denied having taken anything or having intended to take anything, however his fingerprint was found inside. He said his associate returned to that place with another person and they did steal things which is why it became a burglary.[41] 

    [41]    Transcript, page 35, lines 9 to 13.

14. In March, April, May and June 2018 the Applicant was caught in possession of illicit drugs and/or drug related paraphernalia.

15. In August 2018 the Applicant was convicted of trafficking in dangerous drugs, being methamphetamine, between 25 June 2015 and 12 May 2016. He was sentenced to five years imprisonment, to be suspended for five years after serving 12 months. He was also dealt with for the receiving tainted property offence referred to above (and sentenced to probation), failure to appear in accordance with his bail undertaking on two occasions (and he was sentenced to one month imprisonment, suspended), the burglary and commit indictable offence referred to above (and he was sentenced to three months imprisonment, suspended), breach of bail on two occasions, and the possession of drugs and drug related paraphernalia referred to above (for which he was convicted and not further punished).

16. The remarks of the learned sentencing Judge included the following:

    “The maximum penalty, as you have heard, for the trafficking is, in fact, 25 years imprisonment. And the fact you are standing here in the Supreme Court facing a sentence where the maximum penalty is 25 years indicates to you how serious trafficking in dangerous drugs is. You know the consequences it has to young people in the community in particular and you know the consequences it has had for you. I have read your letter and I have read the reference from your father and for a number of years now your life has been miserable and out of control and that that’s a consequence of drug use.

    ...

    You came to the attention of police when they commenced an operation on the Gold Coast in relation to the suspected trafficking in dangerous drugs. A number of investigation methods were used including covert surveillance, telephone interception and tactical searches. Those investigations reveal that you carried on the business of trafficking in both methylamphetamine and cannabis for an almost 11 month period. They also accessed your stored communications which supported the fact that you were trafficking during that period. You were a street level trafficker. The Crown accepts that but you had at least 10 regular customers. There were 45 people that you supplied to during the period and there are at least 80 identifiable occasions where people purchased drugs from you. You supplied to both drug sellers as well as recreational drug users and you knew that several of those customers were on-supplying to other people. So extending the misery in the community.

    …During the period there were also a number of tactical intercepts by police and, indeed, there were intercepts on five occasions…Concerningly on the 23rd of July 2015 police searched your unit and located 2.76 grams of pure methylamphetamine with a high purity of over 73 per cent. That’s count 2. They also found 1075 grams of cannabis which is count 3. A glass pipe was found which is one of the summary charges. Two mobile phones were found with a number of messages and those phones were, as I have indicated, analysed.

    …

    There is also a charge of receiving tainted property which is count 5. You purchased a caravan in December of 2015 from a friend… He did not own the caravan. The person who did own it had purchased it for $50,000. [The friend] told you that his friend was in prison and was selling it cheap. You were told the caravan was worth $68,000 but you only paid $5000. It is clear from the evidence that you realised the price you were paying was too cheap and in your own words, “It was a bit warm”. When the owner was released from custody he was told that the caravan had disappeared. You received that property knowing it was not the property of the person who had given it to you.

    …You are now 36, so you are not a young man. These offences occurred when you were between 33 and 34. Concerningly, you have a criminal history. You had no criminal history prior to this trafficking period which commenced in 2015. So before the age of 30 you had no criminal history and sadly since 30 you have really now, well, probably you were 33 before you got a criminal history….

    You trafficked whilst you were on bail for some of the offences and also whilst you were on probation. You also trafficked after you were released from custody…

    You have been a hard worker. You are obviously a skilled man. You have got good butchering skills. You ran a small business so you obviously are skilled in that respect. You have worked very hard for a long period of time and, as your letter indicated to me, the drug ice is used in the butchering industry and your father endorses that fact which is a very sad reality. That industry requires people to work long hours but it also seems that sadly drug use is used as a recreational drug but, as you know, its recreational qualities are very limited given the serious health and long-term addiction that necessarily results from use of ice.”[42]

    [42]    Exhibit G1, T9.

17. For completeness I note that the learned Judge appears to have been mistaken about the Applicant’s criminal history: he did have a criminal history before 2015.

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

18. 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.

19. 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

20. 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)…;

    (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)…;

    (g)….

21. There are three categories of offending that warrant particular attention under this Primary Consideration: trafficking dangerous drugs, traffic offences of the kind that tend to increase the risk of accidents, and property offences.

22. The Applicant entered a residential property that was not his, thus breaching the sanctity of someone’s property. He bought a caravan that he was told was worth $68,000 for a mere $5,000, knowing it was stolen. That caravan belonged to a person who was in gaol and therefore had limited ability to protect his property. While the Applicant may not have known the circumstances of the true owner, it is apparent that he did not care either. Dealing in stolen property rewards and encourages theft. This offence is objectively serious.     

23. The Applicant’s traffic history shows an utter disregard for road rules and the system that determines who should be driving and under what circumstances. The many speeding infringements, his use of a mobile phone while driving on multiple occasions, drug-driving, and the instance of not having proper control of a vehicle are all offences of the kind that tend to increase the risk of collisions. By engaging in this behaviour, the Applicant consistently put other road users at increased risk of harm including death. His traffic offending, in its totality, is very serious.       

24. The drug trafficking is the most serious offending. The Applicant supplied methamphetamine and cannabis to others in the community for around 12 months, and he supplied at least 45 individuals including some who were on-supplying to others, which the learned sentencing Judge described as “extending the misery in the community”. It is well-known that cannabis can be addictive, cause health and psychological problems and lead to drug-related crime and to the use of other drugs. The Applicant circulated methamphetamine knowing the addictive properties of that drug and the wreckage it had made of his own life. This was pointed out by the Her Honour who noted “the serious health and long-term addiction that necessarily results from use of ice.”[43] The Applicant must have been aware that the drugs he sold could well have started or contributed to the development of a dependency in an end user or led to some other kind of harmful outcome.

    [43]    Exhibit G1, T9 page 48.

25. The Respondent provided the Tribunal with the Final Report of the National Ice Task Force, 2015 (“the Report”). Chapter 3 is entitled “Impacts of Ice” and contains the following passages concerning the negative effects of methamphetamine:

    “…ice use can result in immense damage to a user’s physical health, occasionally resulting in death. It can have a range of psychological, cognitive and behavioural effects which researchers are only beginning to fully grasp.” [44]

    [44]    Exhibit R2, R6, page 233.

    “Methamphetamine use is associated with a number of extremely serious negative health effects. While high profile consequences, such as psychosis, are given prominence in the public debate, the sequelae [health consequences] extend far beyond this. This is a drug class that causes serious heart disease, has serious dependence liability and high rates of suicidal behaviours.”[45]

    [45]    Exhibit R2, R6, page 233.

    …

    “The physical effects of a toxic dose include nausea, chest pains, tremors, increased body temperature, increased heart rate, breathing irregularities and seizures. Anyone can have a toxic reaction to ice…In Australia in 2011 there were hundred and one accidental drug deaths identified as involving methamphetamine. Deaths caused by psychostimulants such as ice are usually caused by seizures, heart failure or respiratory failure, but can also be caused by brain haemorrhage, strokes or kidney failure.”[46]

    …

    “Methamphetamine use is associated with psychosis, mood and anxiety disorders and cognitive deficits…a toxic dose can result in psychological symptoms such as panic, extreme anxiety and agitation, extreme paranoia, hallucinations and excited delirium.”[47]

    “There is a strong correlation between use of ice and mental health issues. The most common mental health issues experienced by methamphetamine users are psychosis, depression and anxiety…While there is a strong correlation between drug use and mental issues, the relationship is not definitive of a causal relationship. In some cases drugs are used subsequently to experiencing mental health symptoms and in other cases drugs drug use may lead to the development of mental health issues. There also may be factors that lead to both mental health problems and drug use. [In one survey of dependent methamphetamine users who had mental health issues] around 70% said the mental health issues appeared after they began using the drug. There mental health problems tended to coincide with problematic methamphetamine use.”[48]

    “…the Townsville Community Ice Task Force said in its submission ‘People are displaying extremely violent behaviour when they are coming down off ice. Domestic violence is rising due to ice. People are doing more break and enters due to ice. Ice doesn’t discriminate, it affects everyone in the community.”[49]

    “There is an established correlation between methamphetamine use and violent or aggressive behaviour.”[50]

    “…one parent said ‘Our son is a recovering Ice addict, he is well now but we have been through 14 years of hell. There have been car accidents, suicide threats and attempts, and, of course, as with the great majority of addicts theft from us and his siblings. Our other two children have been distressed by seeing the impact on our son’s behaviour on us as his parents. The emotional toll of trying to keep him alive has been enormous for me and I suffered an emotional breakdown. I continue to struggle with depression and anxiety’”.[51]

    …

    “The Foster Care Association of the ACT observed some of the effects on children…‘Many of these children have parents who are heavily involved with illegal drugs, including ice/methamphetamines. Many of these children are directly exposed to drugs-in utero, through second-hand smoke and been (sic) given illegal drugs directly or indirectly. many of these children are exposed to the chaotic, neglectful and violent environment that so often goes hand-in-hand with their parents’ drug use.’”[52]

    [46]    Exhibit R2, R6, page 234.

    [47]    Exhibit R2, R6, page 235.

    [48]    Exhibit R2, R6, page 236.

    [49]    Exhibit R2, R6, page 237.

    [50]    Exhibit R2, R6, page 238.

    [51]    Exhibit R2, R6, page 240.

    [52]    Exhibit R2, R6, page 242.

1. The Report also detailed a multiplicity of secondary impacts including the risks of violence posed to ambulance and emergency workers by methamphetamine users and crime related to drug use such as theft and violence.[53]

   [53]    Exhibit R2, R6, pages 244 to 246.

2. By facilitating the consumption of methamphetamine by individuals in the community, the Applicant exposed them to the direct adverse impacts mentioned above and he exposed other members of the community to the secondary impacts.   

3. As the learned sentencing Judge pointed out, the maximum penalty for this offence reflects how seriously trafficking in dangerous drugs is in general. The penalty that was imposed for the specific offence committed by the Applicant, being five years imprisonment to serve one year, indicates how seriously the court regarded it. A sentence of imprisonment is normally a last resort in the hierarchy of sentencing options available to a court. The Applicant was not only sentenced to imprisonment, he was sentenced to a substantial period of imprisonment including a substantial period to serve in custody.

4. The Applicant received earlier sentences of imprisonment. In February 2016, he was sentenced to 28 days imprisonment for drugs related offences and in May 2016, he was sentenced for four months’ imprisonment. He was released immediately both times, having spent time in remand.

5. The Applicant’s criminal history is lengthy, and his offending is frequent. The same can be said of his traffic history. The cumulative impact of his repeated traffic offending is, as I have said above, that other road users were exposed to increased risk of collision. The cumulative impact of the Applicant’s repeated criminal offending is that he abused people’s property rights and exposed members of the community to the risks associated with cannabis and methamphetamine use.   

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

6. 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.

7. Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the following two 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.

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

8. 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, including any escalation in his offending.

9. With respect to the nature of harm from further trafficking in dangerous drugs, I refer to the extracts from the Report. Suffice to say the nature of harm is extremely serious. The harm from trafficking methamphetamine in the community is so serious that any material risk of further offending of that nature is unacceptable.

10. The nature of harm from further traffic offences of the kind the Applicant has previously committed is that there is an increases risk of collision which could lead to serious physical and psychological injury and death. The harm from further property offences includes financial loss and possibly psychological trauma.  

    Likelihood of engaging in further criminal or other serious conduct

11. The Applicant’s traffic offences started in 1999 when he was 17 years old, before he started using drugs, and there were several in that year. He committed infringements with reasonable consistency until 2015, although there were no infringements in 2010 and 2011. When asked about the traffic offences, the Applicant said he was doing a lot of driving, being on the road and being silly.[54] I find that the Applicant demonstrated a disregard for road rules that was independent of his drug use. In relation to the risk that he would continue to commit traffic infringements, he said he did not want to go back to being known by the police, he is lucky to have his licence back and he does not want to lose it.

    [54]    Transcript, page 43, lines 34 to 38.

12. I note that the Applicant also breached a DVO, apparently because he was mistaken about its conditions. The conditions of a DVO were written on the DVO and the police records indicate that the Applicant was present in court when the order was made, so it appears that he exercised a lack of care in relation to that court order. He also breached bail conditions on multiple occasions and he breached a probation order.   

13. The Applicant commenced trafficking in drugs immediately after losing his job. The speed with which he resorted to doing that strongly suggests that there was not any crisis of conscience involved. While the period of proven offending was from June 2015 to May 2016, the Applicant admitted that he was selling drugs in early 2015. He persisted over a lengthy period despite intervention from the police and the courts, including periods of probation and parole and consultations with a psychologist who helped him to make a Relapse Prevention Plan. He continued to use methamphetamine even after being arrested for several serious offences (trafficking and supply) and granted bail. He was living with his mother while he continued to use drugs on bail.

14. The Applicant claims that he is very embarrassed and ashamed of his offending. He said he will never offend again: he has way too much to lose, and he wants to be a productive and valuable member of the community. He thinks he has matured.[55] Further, he said he will never engage in any recreational drug use knowing the consequences and devastation it has created for him.[56]

    [55]    Exhibit G1, T12, page 56.

    [56]    Exhibit A3.

15. The Applicant tried to use his time in gaol to better himself. He competed a substance abuse program and a resilience course, and he gained vocational skills including in welding and engineering (Certificate II). The resilience course included assertive communication. He recognises how important assertiveness skills are for him because part of the reason he was under so much pressure leading to his drug use was that he could not say no to people for fear of letting them down. He practiced his assertive communication skills in prison.[57] The Applicant also saw the prison psychologist as much as possible to improve his coping skills.[58]

    [57]    Exhibit G1, T12, page 56.

    [58]    Exhibit G1, T12, page 67.

16. The Applicant thinks his mental health will decline rapidly if he remains in New Zealand permanently where contact with his daughter and family has been extremely limited. He thinks his parents will suffer given that they require support and care, and he worries for their well-being. His parents are not in a position to relocate to New Zealand. He wants to be a role model for his daughter and demonstrate to those around him that he has bettered himself. [59] He would like to reconnect with his daughter and start helping his father with his business. I accept that these matters serve as motivators to abstain from drugs and refrain from offending.   

    [59]    Exhibit A3.

17. There is no evidence that the Applicant has used drugs in custody or since being released from immigration detention. The Applicant was initially under supervision when he first returned to New Zealand and he had to submit to drug testing. Mr Smith gave evidence that the Applicant stayed with an uncle when he was first in New Zealand and that a friend of Mr Smith regularly checks up on the Applicant.[60] He is quite sure that the Applicant has not used drugs In New Zealand. I note that, in New Zealand, the Applicant is far away from his old drug-using associates. If he returns to Australia he will return to South East Queensland, a lot closer to his old associates. 

    [60]    Transcript, page 88, lines 7 to 9.

18. The Applicant is currently active in his church and he has a partner. He has informed her that if he gets his visa back, he will return to Australia. If he is able to return, he would like to coach a rugby team or similar.[61] 

    [61]    Transcript, page 11, lines 26 to 30.

19. A number of people provided character references for the Applicant. In December 2018, when the Applicant had been at Palen Creek Correctional Centre for around four months, four prison chaplains wrote letters that spoke positively of the Applicant.[62] One said the Applicant attended Chapel five days per week and was highly respected and regarded by everyone he came into contact with. He described the Applicant as a model inmate. Another said that being together with his family and the welfare of his family appears to be the Applicant’s highest priority. A third said the Applicant had shared his personal faith story which had encouraged others to do the same. He found the Applicant to be genuine in his practice of his faith. The fourth noted that the Applicant often helped by doing cleaning and re-stocking supplies, and that he went above and beyond in his volunteer work.

    [62]    Exhibit G1, T17, pages 75 to 78.

20. Two friends provided letters. One, Lee, said she had known the Applicant for years through his mother and seen that he was a wonderful support around the house for his mother. She thought he had a real heart for helping and serving others.[63] Another, Katherine, wrote to the court in 2018 that she had known the Applicant for a year and a half. She also referred to the Applicant helping his mother, and she described the Applicant as a good friend to her and her partner. She thought the Applicant was ready to put his past behind him.[64] I note that the Applicant would have been using methamphetamine for most, if not all, of the time Katherine knew him, yet she appeared to be unaware of that. 

    [63]    Exhibit G1, T21, page 83.

    [64]    Exhibit G1, T21, page 84.

21. The Applicant’s mother said she thought the Applicant’s drug use hindered his ability to see things and keep them in perspective. She indicated that drug users never accept that anything is their fault, but she does not think the Applicant is like that anymore.[65] She thinks the Applicant has learnt from his past.[66] He has become a Christian and his values in life have changed – he now has a purpose, something to live for.[67] She said if the Applicant gets his visa back, she thinks she and her husband will have to watch him very carefully so he does not get depressed as sometimes that worries her.[68]

    [65]    Transcript, page 72, line 45 to page 73, line 2.

    [66]    Transcript, page 73, lines 30 to 35.

    [67]    Transcript, page 73, lines 36 to 41.

    [68]    Transcript, page 73, lines 7 to 10.

22. Mr Smith wrote an undated letter in which he said that since the Applicant’s arrest, he had completely changed: he was living back at home and Mr Smith had not seen any evidence that he was still addicted to crystal methamphetamine. He was constantly looking for things to do, helping Mr Smith with his food trailer business and he was no longer having any contact with his old circle of friends.[69] Mr Smith now realises that the Applicant was using methamphetamine until around three weeks before he was incarcerated in August 2018, i.e. long after he his arrest.     

    [69]    Exhibit G1, T20, pages 81 to 82; Exhibit A5.

23. Mr Smith also wrote that since the Applicant had been in gaol, he had noticed a massive change in his attitude towards life. He had gained weight, he was looking healthy, and Mr Smith could talk to him without it erupting into an argument. Mr Smith thought the Applicant had a new outlook on life and that he could see a future now whereas he could not before.[70]

    [70]    Exhibit G1, T20, pages 81 and 82.

24. The Applicant’s father detested the Applicant’s drug use. He considers ice to be the “most evil thing in the world”.[71] Mr Smith said that when the Applicant was using drugs, he and the Applicant could not have a conversation for more than five minutes without it blowing into an argument. Now, he can talk to the Applicant normally, say what he thinks, tell him he thinks he is doing the wrong thing, and there is no argument.[72] Mr Smith’s plan is that if the Applicant gets his visa back, he will work in his business. Mr Smith currently imports new coffee and food carts from China, makes improvements to them to meet safety standards and fits them out, then sells them. The Applicant would work on the food carts and deal with customers. The hours would be reasonable so the Applicant would not be under the pressure he was under when he worked as a butcher.[73]

    [71]    Transcript, page 79, lines 18 to 19.

    [72]    Transcript, page 79, lines 34 to 45.

    [73]    Transcript, page 80, lines 32 to 38.

25. While Mr Smith feels that he failed the Applicant by taking a tough-love stance (after giving him a job to get him away from drug use and paying his drug debts to keep him safe), I think he is the most significant protective factor the Applicant has because of his anti-drugs attitude and willingness to act on that. Further, Mr Smith is in a better financial position now so he can help pay for residential rehabilitation.  

26. However, a concern I have is that the Applicant was easily led into drug use and he was good at hiding it. The ability of the Applicant’s parents to act as protective factors is limited if the Applicant can hide drug use from them.       

27. Dr Palk provided a risk assessment. The information provided to Dr Palk differed in some respects to the evidence before the Tribunal and it was not as comprehensive, for example Dr Palk was not aware of the Applicant’s traffic infringements. 

28. Dr Palk was under the impression that when the Applicant’s father became aware of his drug use, he stopped him from working in the family business. It was the opposite: Mr Smith gave him a job in an effort to stop his drug use though he did eventually stop the Applicant from working in the business. The Applicant reported that when he ceased working, he began sleeping all day, was awake all night and began to deal drugs to support his habit. The Applicant told Dr Palk that people threatened him over drug debts and demanded money from his father, so he felt he had no choice but to sell drugs to prevent further retaliation and support his drug habit. However, in the hearing, the Applicant acknowledged that he started selling drugs before any threats were made. 

29. Dr Palk thought the Applicant was sincerely remorseful for the harm he had caused and had a genuine desire to never use illegal substances again. The Applicant told Dr Palk that he wanted to live a prosocial life, marry and raise a family, support his parents and manage the family food trailer business.

30. Dr Palk considered that the Applicant met the criteria for an adjustment disorder with features of anxiety and depression and a substance use disorder that is now in remission.

31. Dr Palk did not identify indicators of current aggressive or violent tendencies or elevated psychopathic traits. He assessed his risk of re-offending as low considering his personality and overall lifestyle, remorse, and attitudes to work and his desire to return to and remain in Australia. He said that if he abstains from all forms of illegal and illicit substances, he should remain a minimal risk for future offending. Dr Palk was not aware of the Applicant’s traffic offences at this time, and he was under the impression that the period when the Applicant was using drugs was relatively short. 

32. Dr Palk gave evidence in the hearing. He said that the drugs made the Applicant into a very different person and that naturally he is a reserved, quiet, humble man who is not a criminal in the sense that he will “run around deliberately hurting people”.[74] Even when Dr Palk was still under the impression that the period of drug use was short, he expressed no doubt that the Applicant would have continued using drugs if he had not have been caught and imprisoned. [75]  He said the Applicant is now back to his normal adaptive, healthy, functioning self.[76]

    [74]    Transcript, page 52, lines 1 to 5.

    [75]    Transcript, page 52, lines 40 to 43.

    [76]    Transcript, page 52, lines 1 and 2.

33. In terms of risk of re-offending, he said it is low, and if the Applicant does not mix with drug associates and use drugs again the risk is exceptionally low. On the other hand, if he were to associate with drug users, the risk would be high for using drugs again and committing more offences.

34. In Dr Palk’s experience, a person with a dependency should completely abstain, rather than use a little, and there is always a risk of relapse. He said a person can stay drug free for a year or two and then relapse, although the relapse is normally brief before they “get back on the horse”. [77] He did not have any statistics on relapse rates but he said from memory after the first 12 months of being clean, the relapse rate is quite high and it gets lower over time. He said if a person can stay drug free for five years, it is unlikely they will return to drug use. The Applicant has been clean since August 2018, over three years. 

    [77]    Transcript, page 55.

35. When informed about the Applicant’s traffic history, which dates to before the drug use, Dr Palk it said it shows a disregard for authority and a disregard for people on the road. He also said it may be an indication of a personality framework that is open to the idea of taking risk. He opined that there is a high risk of the Applicant committing driving-related offences.  He considered that the only redeeming feature is that he is aging so may have matured a little bit and he is motivated to please his parents and to be more responsible including running a business which would involve driving. He said if risk taking is associated with immaturity and being slow to mature, there can be more hope for the Applicant now that he has become a responsible son.

36. When asked about the fact that the Applicant had spent years committing traffic offences and he had a period of sustained illegal drug use, Dr Palk said:

    “…he's saying, it's okay to drink and drive, it's okay to drug and drive, I can handle it. But I'm not going to go out and punch people up, I'm not going to go out and break and enter and steal because I'm in trouble. It's okay to sell a bit of drug…it's a person's choice and I'm not really hurting anyone, I'm just trying to support my drug habit. That's very different from a person who's clearly got elevated psychopathic traits, he just doesn't care about anything or anyone and doesn't care about being caught, doesn't care about going in jail.” 

37. I accept that the Applicant is remorseful and wants to abstain from drugs and obey the law. I accept that he was of good behaviour in custody and did not consume drug in custody or after his release. I accept that if he is allowed to return to the Australian community, he will work in his father’s business which will not have the pressures of his previous work, and his father will be in a position to partially supervise him. However, the Applicant has demonstrated a mentality, over many years, that it is alright to break certain laws and he was very quick to resort to drug trafficking, a very serious crime, to support his drug habit. He persisted even though he kept getting arrested and despite bail undertakings and probation. He was influenced by drug using associates and he even used drugs on his father’s business premises. He was good at hiding his drug use when it was reasonably controlled. His parents said he could not be reasoned with when he was using drugs. I think there is a substantial risk that the Applicant will mix with persons who use drugs or otherwise find himself in a situation that leads him towards drug use. Accordingly, I find that there is a risk of further drug use. If the Applicant were to relapse, I am not confident that his parents would necessarily pick up on it or that he would take the steps required to achieve abstinence again. According to Dr Palk, those circumstances would then lead to a risk of re-offending. Accordingly, I find that there is a low, but material, risk that the Applicant will again become involved in drug related crime including in the supply of drugs in the community. I find that there is at least a low risk that he will commit further traffic and property offences of the kinds that he previously committed.                

    Conclusion: Primary Consideration 1

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

   PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

2. Paragraph 8.2 of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.

3. I am not satisfied that the Applicant’s conduct before the DVO was made in 2005 was physically violent or was coercive or caused his ex-partner to feel afraid. Further, there is no police evidence as to the contents of the text messages or letter that breached the DVO. The Applicant’s description of the contents of those communications does not indicate that they constituted family violence separately or cumulatively. Nor am I satisfied that the order in 2011 arose from family violence. This Primary Consideration is neutral.

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

4. Paragraph 8(3) of the Direction compels a decision-maker to consider the best interests of a minor child in Australia. While it appears that the Applicant has a teenage cousin in Australia, no evidence was put forward about this person or their relationship with the Applicant. The Applicant did not claim that there are any minor children in Australia who best interests would be affected by the decision. This Primary Consideration is neutral.

   PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

   The relevant paragraphs in the Direction

5. In making the assessment for weight to be allocated to Primary Consideration 4, Paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.

6. 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. It goes on to identify some behaviour of particular concern, none of which the Applicant has engaged in.

7. 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.

8. 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.

9. 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

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

    ·the Applicant is 40 years old. He permanently relocated to Australia when he was 17 years old;

    ·he started committing traffic infringements three months later and he committed his first criminal offence after six years;

    ·he engaged in serious and frequent drug related offending, that included trafficking in methamphetamine and cannabis, during a period when he was addicted to methamphetamine;

    ·over a nearly 16 year period, he committed numerous traffic infringements including mid and high range speeding, unlicensed driving and drug-driving. Much of that offending was not related to his drug addiction;

    ·there is a low risk that he will re-offend;

    ·his offending shows a disregard for the safety of others in the community he seeks to re-enter;

    ·he has a reasonably solid employment history; and

    ·if he must remain in New Zealand, it will adversely affect his parents, his brother and Ms E (addressed below under Other Considerations).  

    Conclusion: Primary Consideration 4

11. Considering all relevant factors, Primary Consideration 4 weighs heavily against revocation of the cancellation of the Applicant’s visa.  

    OTHER CONSIDERATIONS

12. 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

13. 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

14. 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.

15. The Applicant is a 40 year old man who is able bodied and apparently in good health. He currently suffers from an adjustment disorder. His substance abuse disorder is in remission.        

16. Having lived in New Zealand for many years, the Applicant is not facing any substantial language or cultural barriers. He has some relatives in New Zealand including an uncle with whom he stayed when he first arrived. He is a member of a church congregation and he is in a relationship with a lady from his church. He is in regular contact with his parents who are supportive. He has some contact with Ms E.   

17. The Applicant is employed, and he is entitled to government income support in New Zealand. He has established himself in New Zealand and is maintaining basic living standards in the context of what is available to other New Zealand citizens.  

18. The Applicant’s parents will not move to New Zealand if the Applicant does not get his visa back. He loves his parents, and they love him. He thinks that if he cannot return to Australia his parents will suffer given that they require support and care, and he worries for their well-being.[78] Given his age and lack of support networks in New Zealand, he anticipates that his mental health will decline rapidly if he remains there permanently, where contact with his daughter and family has been extremely limited. [79] I accept that not being able to return to Australia will cause the Applicant emotional hardship and worry for his parents and Ms E, and it could impact his mental health. The medical and psychological services that are available in New Zealand are comparable to what is available in Australia. Further, the Applicant is still able to contact his parents and Ms E from New Zealand as he does now, and he presumably has some social support from his partner and his church congregation.

    [78]    Exhibit A3.

    [79]    Exhibit A3.

19. The Applicant’s mother has a brother who is very ill and a sister in New Zealand. His father has a brother and two sisters in New Zealand. There are three or four cousins there.[80] The Applicant claims not to have any contact with his cousins. However, he stayed with an uncle when he first arrived in New Zealand and a friend of his father’s regularly checks on him. Those two men have shown a willingness to provide some help to the Applicant.

    [80]    Transcript, page 76, lines 10 to 16.

20. I am not satisfied that the emotional and psychological impact of a non-revocation decision would be so great that the Applicant would not be able to maintain basic living standards in the context of what is available to other New Zealand citizens.        

21. This Other Consideration (b) is neutral.  

    (c) Impact on victims

22. 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 neutral.

    (d)     Links to the Australian Community

23. 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

24. The Applicant permanently moved to Australia at the age of 17 and he lived in Australia for over 20 years. He committed his first criminal offence six years later, although he had been consistently committing traffic infringements for most of that time.

25. The Applicant has contributed to the Australian community through employment. While his employment was inconsistent at times due to his drug use, when he did work he was a hard worker. The Applicant volunteered his time while in prison, assisting the chaplaincy.

26. The Applicant’s parents and a brother live in Australia. He has another brother in Canada. He has an aunt and uncle, and five cousins in Australia. The Applicant’s 21 year old daughter lives in Australia and she is currently undertaking tertiary studies. The Applicant has some positive social connections in Australia.

27. According to the Applicant, when Ms E was nine years old, her maternal grandparents decided that she needed him in her life because she was not getting along with her step-father. He says they have a close relationship and that he did a range of activities with her including kayaking, teaching her to take photographs, and other various wildlife oriented adventures. He claimed to have regular contact with her through phone and video calls multiple times per day.[81] One might expect that if the Applicant and Ms E had such a close relationship, she would have provided a letter of support and given evidence. She did neither. In the hearing, the Applicant admitted that he and Ms E do not speak with each other multiple times every day but there have been times when they have when she was upset about something.[82]

    [81]    Exhibit A3.

    [82]    Transcript, page 36, lines 40 to 46.

28. The Applicant thinks Ms E still requires a strong paternal figure in her life to ensure that she has the emotional, physical and financial support of both her parents. He said he has heard that she is worried about the prospect that he will not be able to return Australia. He is deeply saddened by the thoughts that he may not be able to be a part of her life.[83]

    [83]    Exhibit A3.

29. Without any evidence from Ms E, it is difficult to gauge how she has been impacted by the Applicant’s absence from Australia and how his permanent absence would impact her. There is potential for her to visit, subject to travel restrictions and her having sufficient funds. The Applicant can continue to contact her from New Zealand. I am prepared to accept that the Applicant’s permanent removal from Australia would sadden her. I am satisfied that it would benefit her to have the Applicant in Australia because he wants to play a more meaningful and positive role in her life, and if he remains drug-free he would be able to do that. If he remains in New Zealand, she will miss out on that benefit.     

30. I do not have enough information about the Applicant’s relationship with his aunt, uncle and cousins to allocate any weight in favour of revocation.

31. The people who have been, and will be, most impacted by the Applicant’s absence are his parents. The Applicant’s mother works part-time as a personal carer. It is physically taxing work, and she plans to retire in around 18 months. She said she and her husband could visit New Zealand, but at their age (both mid-sixties) they could not move back there. She would have to live in New Zealand for five years before she would qualify for a pension.[84]

    [84]    Transcript, page 75, lines 21 to 25.

32. The Applicant’s father has a weak heart and requires a stent. He can barely walk and even gets exhausted having a shower. He thinks he also suffers from asthma. He is unable to perform the necessary work on the carts he imports so he has employed staff to do that. They do an adequate job but he thinks the Applicant would go that extra mile to do a perfect job as he would have a vested interest in the business and he has done this work for Mr Smith before. Mr Smith wants to retire soon and have the Applicant take over. One of his other sons runs an arm of the business in Melbourne but he will not take over the Brisbane business that sells to Queensland, New South Wales, Western Australia, the Northern Territory and South Australia. If the Applicant does not take over the business, it will close. Mr Smith does not think he could sell it as there are hundreds of factories in China that make food carts. 

33. The Applicant speaks with his parents every few days. His mother feels extremely sad that the Applicant is in New Zealand and deeply distressed by the thought that he may never return to Australia. In her written material she said she needs the Applicant to support her physically, emotionally, and financially [85] although she clarified in the hearing that she is not relying on the Applicant financially or physically.[86] I do take into account, however that the Applicant used to help her around their home.   

    [85]    Exhibit A6.

    [86]    Transcript, page 77, lines 14 to 23.

34. Mr Smith indicated that the Applicant having to live in New Zealand would be significantly detrimental to him and his wife.

35. I accept that if the Applicant does not get his visa back, Mr Smith’s business will likely fold when he retires. I accept that he is not in good health and he would prefer to have the Applicant’s help in the business as long as he continues to operate it. I am satisfied that if the Applicant must remain in New Zealand his parents could visit him and maintain phone contact with him. However, even so, they will suffer significant emotional hardship on top of the emotional hardship they have already suffered. 

36. The last time the Applicant saw his brother who lives in Australia was around four years ago. His brother did not provide any evidence and it does not seem that they have a particularly close relationship, but they are family, and I am prepared to assume his brother would be saddened if he could not return to Australia. 

    Impact on Australian business interests

37. If Mr Smith’s business cannot carry on after he retires, that would result in two or three staff losing their jobs and the particular types of coffee and food carts the business sells no longer being available in most states. However, these impacts are not big enough to constitute an adverse impact on Australian business interests in the sense contemplated by the Direction.  

    Conclusion: Other Consideration (d)

38. Overall, I am satisfied that the Applicant’s links to the Australian community weigh very significantly in favour of revocation.

    CONCLUSION

39. I am now required to weigh all of the Considerations in accordance with the Direction. The Applicant’s most serious offending, being drug trafficking, was driven by a drug addiction. The Applicant tried unsuccessfully to address his addiction at one time. There is a good chance that if he were allowed to return to the Australian community, he would live a productive, law-abiding life. However, there remains a real risk that he will re-lapse to drug use and, separately, commit further traffic offences. He has breached the trust of the Australian community by engaging in offending of a very damaging nature. I have a great deal of sympathy for the Applicant’s parents, given the efforts Mr Smith made to steer the Applicant away from drugs, the impact the Applicant’s offending has had on them both, and the impact that his visa cancellation has had and will continue to have on them. However, the matters that favour revocation of the cancellation of the Applicant’s visa are not sufficiently strong to outweigh Primary Considerations 1 and 4. Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.

    DECISION

40. The decision under review is affirmed.

I certify that the preceding 133 (on hundred and thirty three) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

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

Associate

Dated: 4 May 2022

Date of hearing:

22 and 23 April 2022

Solicitor for the Applicant:

Mr Tanguy Mwilambwe

Armstrong Legal

Solicitor for the Respondent

Mr Matthew Hawker

Sparke Helmore

ANNEXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 37 T-Documents (T1 to T24 paged 1 to 115)	R	-	13 September 2021
A1	Applicant's Statement of Facts, Issues and Contentions (paged 1 to 19)	A	1 October 2021	4 October 2021
A2	Applicant’s Supplementary Statement of Facts, Issues and Contentions (paged 1 to 12)	A	8 November 2021	9 November 2021
A3	Statement of the Applicant (undated) (5 pages)	A	-	2 October 2021
A4	Briefing Letter to Dr Gavan Palk, Forensic Psychologist (undated) (7 pages)	A	-	2 October 2021
A5	Statutory Declaration of the Applicant’s Father (undated) (3 pages)	A	-	2 October 2021
A6	Statutory Declaration of the Applicant’s Mother (undated) (2 pages)	A	-	2 October 2021
A7	Psychological Report of Dr Gavan Palk, Forensic Psychologist (14 pages)	A	29 October 2021	17 November 2021
A8	Medical Evidence regarding Applicant’s Father (7 pages)	A	-	22 November 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 16)	R	4 November 2021	4 November 2021
R2	Respondent’s Tender Bundle (R1 to R7, paged 1 to 437)	R	-	4 November 2021