SZSS and Minister for Home Affairs (Migration)

SZSS and Minister for Home Affairs (Migration) [2018] AATA 4079 (30 October 2018)
Division:GENERAL DIVISION
File Number: 2018/4463
SZSSRe
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member K Parker
Date:30 October 2018
Place:Melbourne

The Tribunal affirms the decision made on 6 August 2018 under s 501CA(4) of the Migration Act 1958 (Cth) by a delegate of the Minister for Home Affairs to refuse to revoke the mandatory cancellation of SZSS’s Class TY Subclass 444 Special Category (Temporary) visa.
[sgd]........................................................................
Member K Parker
MIGRATION – application for revocation of mandatory cancellation of visa – applicant is a citizen of New Zealand – applicant does not pass character test – whether another reason to revoke decision to cancel visa – history of criminal offending resulting in imprisonment – offences involved armed robbery, drug-related, driving-related and dishonesty offences – seriousness of applicant’s offences– consideration of mitigating circumstances – applicant acting under influence of alcohol and prohibited substances – applicant experienced family issues involving his ex-partner and access to his eldest son – where Australian community would expect non-revocation – applicant has lived in Australia for the past 20 years – applicant arrived in Australia as a nine year child – best interests of two sons who are Australian citizens living in Australia – risk of the applicant reoffending – extent to which applicant will face impediments when settling in New Zealand – whether international non-refoulement obligations were triggered – decision affirmed
Legislation
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA, 501G
Sentencing Act 1991 (Vic) s 8B
Cases
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BCR16 v Minister for Immigration and Border Protection [2017] FCFCA 96
Falzon v Minister for Immigration and Border Protection (2018) 351 ALR 61
Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 247
Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441
Minister for Immigration and Multicultural Affairs v “SRT” (1999) 91 FCR 234
Secondary Materials
American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. Arlington, VA, American Psychiatric Association, 2013
Direction No. 65 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014
Commonwealth of Australia, Department of the Prime Minister and Cabinet, National Ice Action Strategy 2015
Returning Offenders (Management and Information) Act 2015 (New Zealand)
REASONS FOR DECISION
Member K Parker
30 October 2018
INTRODUCTION

On 6 August 2018, a delegate of the Minister made a decision under s 501CA(4) of the Migration Act 1958 (Vic) (Act) not to revoke the cancellation of a visa held by SZSS.[1] The delegate was not satisfied that SZSS passed the character test or that there was another reason why the cancellation should be revoked.
[1] At the hearing on 18 October 2018, the Minister’s representative indicated to the Tribunal that the Minister sought to rely upon the evidence relating to an offence the Applicant committed as a child. The Tribunal is prohibited by law from publishing information that will identify the Applicant as having committed an offence as a child. For this reason, the Tribunal has made an order under s 35(3) of the Administrative Appeals Tribunal Act 1990 (Cth) (AAT Act) to restrict the publication of the name of the Applicant; to allocate the pseudonym “SZSS” in place of the Applicant’s name; and to omit details of any other persons or places which might reveal the identity of the Applicant.
SZSS lodged an application for review by this Tribunal. The hearing of this application took place over three days on 18, 24 and 29 October 2018. SZSS was self-represented. Under the Migration Act 1958 (the Act), the Tribunal is required to make its decision by 30 October 2018; otherwise, the decision under review will be taken as affirmed by the Administrative Appeals Tribunal (AAT).[2]
[2][2] The effect of s 500(6L) of the Act requires the Tribunal to hear and determine SZSS’s application within 84 days from the date that SZSS received notice of the delegate’s decision, otherwise the decision is taken to have been affirmed by the AAT. SZSS states in his AAT application for review form and also as confirmed by him at a telephone directions hearing on 16 August 2018, SZSS received the notice of decision on 7 August 2018. Accordingly, the 84^th day is 30 October 2018.
SZSS and the legal representative for the Minister lodged documentary evidence and written submissions. SZSS gave oral evidence at the hearing and called his father and a number of friends to give evidence in support of his application to be permitted to remain in Australia. He also lodged a number of character references by those witnesses and some other friends. SZSS wanted to call his 10-year old son as a witness; however, this was not required as both the Minister and the Tribunal accepted SZSS’s evidence about the closeness of his relationship with his eldest son and also the likely affect it would have on him and SZSS, if SZSS was required to move back to New Zealand.
On 30 August 2018, the Minister’s representative lodged a set of documents with the Tribunal that were provided to SZSS with the delegate’s decision, in accordance with s 501G of the Act (G-Documents).
Police records and the relevant Magistrates’ Court files in relation to SZSS’s previous offending and other conduct, were also produced to the Tribunal under summons. They were lodged with the Tribunal as a set of Supplementary G-Documents (and provided to SZSS) on 27 September 2018 and subsequently, as a set of Amended Supplementary G-Documents on 2 October 2018 (ASG-Documents).
No psychologists, psychiatrists or other expert witnesses were called to give oral evidence. However, the Tribunal has taken into account the following documentary material that was presented to the Tribunal by the parties:
(a)a mental health professional (MHP) prisoner summary and prisoner health information form completed on 14 November 2017;[3]
(b)a report by Elizabeth Warren, consultant forensic psychologist, dated 28 March 2008;[4] and
(c)a set of clinical notes made available by SZSS to the Tribunal and the parties on 24 October 2018, and accepted into evidence at the resumed hearing on 29 October 2018.[5]
[3] Refer ASG-Documents ASG3/239-244.
[4] Refer ASG-Documents ASG4/315-321.
[5] Refer Exhibit “A3”. Refer also G-Documents G13/76-78.
SZSS conceded that he did not pass the character test under s 501(6) of the Act on account of his substantial criminal record. This meant that the Tribunal was required to consider whether there was another reason why the visa cancellation by the Minister’s delegate should be revoked. It did so after taking into account the mandatory primary and other considerations set out in Direction No. 65 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, 22 December 2014 (Direction no.65).
Having closely considered all of the evidence tendered and submissions made by both parties to this review and the primary and other considerations set out in Direction no.65, the Tribunal does not consider there to be another reason why SZSS’s visa cancellation should be revoked.
For the reasons outlined below, the Tribunal affirms the decision of the Minister not to revoke the cancellation of SZSS’s visa. This means that the cancellation of SZSS’s visa stands, subject to any appeal rights that SZSS may have.
BACKGROUND
Information about SZSS
SZSS was born in New Zealand and is a citizen of that country. He is 29 years old. He has lived in Australia since the age of nine and is currently in an immigration detention facility.
SZSS’s childhood and family
SZSS’s biological father left his biological family before SZSS was born. When SZSS was two days old, he was adopted by another family. The members of his adoptive family comprised the step-brother of his biological mother (Father), his wife (Mother) and their three daughters, all older than SZSS (Sisters).
SZSS understands the reason he was given up for adoption was that his biological mother already had four sons to care for which was considered enough, in circumstances where SZSS’s biological father had left the family. After SZSS’s adoption, his biological mother had another child (a daughter) who remained in her care.
SZSS has not met his biological father. He has remained in communication with his biological mother who lives in a city in New Zealand and went to stay with her one Christmas following his move to Australia. Two of SZSS’s biological brothers and his biological sister live in New Zealand and the other two biological brothers live on the west coast of Australia. SZSS says he is not close to his biological siblings as he did not grow up with them.
Sadly, Mother died of cancer when SZSS was six years old. The Tribunal acknowledges that this would have been difficult for SZSS to have lost Mother when he was young. SZSS remained in the care of Father who steadfastly continued to provide parental care and ongoing support to SZSS and his daughters to the present day.
Father has worked as a courier for a large transport company for the last 11 years. He has worked on a full-time basis in this job, but his employment status changed from casual to permanent in March 2018. Father did not re-partner following the death of Mother and spent his life devoted to caring for his daughters and SZSS. SZSS spoke highly of Father as a parent and in relation to the degree of care he provided to SZSS and Sisters, as they were growing up.
SZSS said Sisters stepped into Mother’s shoes after her death to help Father care for him. He said he was close to Sisters, as they were growing up. He said Sisters had been hurt by what had happened (in reference to what SZSS had done). SZSS said they were not happy with him. SZSS said they were not prepared to give evidence in support of his application, despite him asking them to do so.
Upbringing in Australia
SZSS first arrived in Australia on a Class TY Subclass 444 Special Category (Temporary) visa on 4 July 1998, when he was nine years old.[6] He came to Australia with Father and two of his Sisters. They joined SZSS’s third Sister, who was already based in Australia when they arrived. Father and Sisters (and their families) remain living in Victoria.
[6] Refer G-Documents G21/110.
SZSS attended both primary and secondary school in Australia. He also attended TAFE “for another form of VCE education”.[7] He successfully completed Year 12 and at the hearing, said he did well in his grades.
[7] Refer page 6 of SZSS’s submissions, entitled, “Reasons to stay” lodged with the Tribunal on 8 October 2018 (SZSS’s Submissions).
SZSS was asked whether he experienced any significant issues growing up and he said he had not. Father also gave evidence that to his knowledge, SZSS did not experience any significant issues growing up.
Previous employment in Australia
After SZSS finished his schooling, he started work as a carpenter for about two years. He was selected for an apprenticeship which he started, but did not complete. He said he stopped doing this work because he was dissatisfied with the low wages he was being paid.
SZSS said he was also employed in “shop fitting in stainless steel” for a couple of years as a casual. He worked in a full-time position for a company as a “window assembler joiner”. When SZSS was asked why this job ended, he said it was because he “slacked off”. SZSS also worked as a warehouse assistant, and in other “on call” jobs. SZSS worked in electronics (emptying containers and shelf stocking); on road works and in a nightclub, for a period of about one year.
SZSS said he was not permitted to work while in detention and when he was in prison for three months at the end of 2017/start of 2018, he was employed “in woodwork” on a full-time basis.
Eldest Son
SZSS commenced a relationship with a woman in about 2006 (Ex-Partner). Ex-Partner fell pregnant. SZSS’s eldest son was born in about 2008 and is currently aged ten (Eldest Son). During the pregnancy and for about two years following the birth of Eldest Son, SZSS, Ex-Partner and Eldest Son lived together as a family.
Ex-Partner was born in, and is a citizen of, New Zealand and is permanently residing in Australia. SZSS described his relationship with Ex-Partner as having been “up and down” for the last ten years and that they had been working on it “for the better”.[8] He said they have put their differences aside and are presently friends.
[8] Refer page 9 of SZSS’s Submissions.
The Tribunal asked whether SZSS had asked Ex-Partner to give evidence in support of his application. SZSS said that he had tried to contact her about it in January 2018, but he had not heard back from her.
SZSS gave evidence that after he separated with Ex-Partner, when Eldest Son was about two years old, he would care for Eldest Son every second weekend. He said Eldest Son would stay with SZSS and Father (which was where SZSS was living at the time).
When Eldest Son was about four years old, Ex-Partner relocated to Queensland to “follow her new partner”. SZSS said he would fly to Queensland to visit Eldest Son once every couple of months. SZSS gave evidence that Ex-Partner was in Queensland for a period of about three and half years, before returning to Melbourne.
SZSS gave evidence at the hearing that Ex-Partner and Eldest Son are living in an outer suburb of Melbourne. SZSS said he is not aware of Ex-Partner having re-partnered and did not think that she had. SZSS gave evidence that Eldest Son is cared for by Father every second weekend. He said that Father was likely to have told him if Ex-Partner had re-partnered. Father confirmed in his evidence that Ex-Partner had not re-partnered to his knowledge.
Father said that Eldest Son lives with Ex-Partner, Eldest Son’s grandmother and his great-grandmother. There are no other persons living in their home.
SZSS said he has a close bond with Eldest Son. He said he had participated in a lot of activities with him (together with Eldest Son’s cousins), such as football, skate-boarding, video games, bike riding and outings. SZSS said he was also close to his Sisters’ children and the children of his close friends. He said they called him “Uncle” and he was godfather to two of them. He said he had a very close bond with the three daughters of his second eldest Sister, all aged under 18 years. He said he raised them like his own.[9] He said he has kept in contact with them while in detention via Facebook.
[9] Refer page 11 of SZSS’s Submissions.
Youngest Son
SZSS said that another woman (not Ex-Partner) has informed him that he is the biological father of her son (Youngest Son). SZSS said the timing “lines up” and that the child looks like him in the photographs. He said he remained uncertain as to whether he was the father, because he had “not met him”. Youngest Son lives with his mother in Australia and is one year old.
Eldest Son and Youngest Son were both born in Australia and are Australian citizens.
Current close friendship
SZSS is not married. He said he presently has a close friendship with a woman who he met before going into prison in November 2017. He said she was a 23-year-old student. He said he did not think she was currently employed. He said they had not previously engaged in an intimate relationship, but he had been in communication with her while he was in detention. He said they were planning to commence a “friendship” once he was released from detention and “they would see where it goes”. This person was born in Australia and is an Australian citizen. During cross-examination, SZSS gave evidence that this person was not a user of methylamphetamine (ice) to his knowledge; however, he said she smoked “weed”.
Extended family
SZSS said he has 15 uncles and 15 aunts living across Melbourne as well as 30 cousins, their partners and children. He said he remains in communication with about half of them. He said that his cousins respect and support him. He said that two or three of them had visited him while he was in detention.
SZSS said that most of his grandparents had passed away. He said his grandmother (i.e. his Father’s mother), was living in New Zealand. He said he did not have a close relationship with her.
History of SZSS’s drug use
SZSS said he did not take a lot of drugs while he was in high school. He said he took marijuana, but infrequently (i.e. whenever it became available to him). SZSS said he did not remember accurately how frequently he used marijuana at high school except that it was “probably about two or three times per week on average”.
SZSS said he could not remember when he first started using ice, other than to say he first tried it when he was about 17 or 18 years old; only had a small dose at a friend’s house; and then did not take it again for some time. He said the second time he used ice was over 12 months later and he did not continue taking it on an ongoing basis. He said taking ice became a regular habit when he was about 20 years old. He said he took it on average about three times a week. He regarded this level of usage as “not heavy” (and considered daily use to be “heavy”). He accepted that using ice had become a regular habit for him. He said he has not overdosed on ice.
SZSS gave evidence that he used ice in this way “on and off” for a period of approximately eight years between the ages of 20 and 28. He said he only ever smoked ice and did not inject it. In response to questioning at the hearing, SZSS said that in more recent years (before he stopped), he had to use a higher dose of ice than in the earlier years of him using it, in order to get the same effect.
SZSS said about four years ago, he had stopped using ice for a couple of years, but he got back on it again. He said he was unlike other people in that if he stopped using ice, he did not experience withdrawals or physical effects. When asked what triggered the relapse, he said he went to a neighbor’s house and they had some ice. He said he did not know what tipped him over into having a relapse. When asked whether the previous jail term had acted as a deterrent for him at that time, he said that he had actually forgotten that he had been to jail.
SZSS was asked whether he had any other relapses and he said he had not. He said he would not relapse again because “I have control over it now”. He said he would not suffer any further relapses because of his son. He said he had “new goals now”, which included the following:
(a)he wanted to provide for his son and his other son who he was yet to meet;
(b)he “wanted to be someone” and did not want to be a “drop kick”;
(c)he had come close to losing his family and he could not afford to have that happen as he “needed” them; and
(d)he had “the ability to create something good”.
At the hearing, SZSS was asked how he managed to cope with work while he was taking ice. He said that when he was working he was not on ice, and when he was not working he was on it.
In response to questioning at the hearing, SZSS said when he took ice it made him feel good and helped him to escape from his struggles, especially when he did not have work to do. He said it affected his “chain of thoughts” and when he was on it, he was “not in a right state of mind to think clearly”. When asked whether it made him feel aggressive, he responded, “yes it did, mostly to myself”. When asked whether it made him become a “risk-taker” when taking it, SZSS said “yes”. He said it could keep him awake for days and when this happened, it would sometimes cause him to hallucinate.

SZSS gave evidence that he had previously experienced problems remembering what he had done while he was on ice.
Information about ice
As reported in the National Ice Action Strategy 2015 (Strategy) by the Council of Australian Governments (COAG), the impact of ice was described as follows:[10]
[10] Refer Commonwealth of Australia, Department of the Prime Minister and Cabinet, National Ice
(page 8) …The number of hospitalisations related to methamphetamine increased five-fold between 2009-10 and 2013-14, and the number of specialist drug treatments provided for methamphetamines almost tripled over the same period.
…
…Both smoking and injecting have a high risk of dependence…
(page 10)
Ice is a powerful stimulant
The purity of ice and other forms of methamphetamines is increasing and has reached the highest ever reported level
Ice triggers a rapid release of dopamine in the brain. While producing a euphoric rush and increased alertness for many users, it can also trigger violent and aggressive behaviour in some users.
Ice can cause psychological disturbances such as panic, extreme anxiety, agitation, paranoia, hallucinations and delirium.
The acute effects of ice can be followed by a “crash” as the effects of the drug wear off, manifesting in a deep exhaustion that may last for several days.
Heavy, long term ice is thought to damage the brain causing impaired attention, memory and motor skills.
(page 11)
Ice use is causing disproportionate harm in the community
1.1 per cent of Australians reported using ice in 2013
The nature of ice means its impact on society is significant:
·Risky behaviours including unsafe sex, the sharing of needles by injecting users, and driving under the influence of drugs.
·Personal costs including risk of dependence, physical and mental health issues, involvement in crime, loss of employment and housing and disruption to education.
·Distress for children, families and communities including family breakdown, financial distress and concern over users’ erratic and at times violent behaviour.
·Potential risk to frontline workers including health, welfare and law enforcement workers, from aggressive behaviour of users and exposure to dangerous chemicals from labs.
…
(page 20)
Many factors drive the demand for ice
·Ice is a powerful yet relatively affordable drug…
·Ice is widely available…
·…A significant proportion of ice users report using the drug at least once a week (25.3 per cent). Ice is more likely to cause dependence than many other drugs and has a very long withdrawal and recovery phase.
…
(page 21)
Treating ice can be a long and difficult process
·Dependant ice use is challenging to treat. The withdrawal, treatment and recovery period of dependent ice use is prolonged and clinically different to other drugs. However, similar to other illicit drug users, many dependent ice users also have co-occurring mental health issues, or multiple drug misuse issues, that further complicate treatment.
·Ice users tend to delay treatment. There is an average time-lag of around 5 years between first problematic use and when people seek help for ice. Many users only seek help once they have developed a long-term or severe dependence.
·Not all services are configured for ice. Many services are able to treat people with alcohol, cannabis and heroin dependency. Ice users have different treatment needs and some services may not yet be configured to provide effective treatment.
·Rates of relapse are high. As with many illicit drugs, relapse following treatment for ice use – including residential rehabilitation and withdrawal management – is very common. For ice it can be as high as 80 to 90 per cent.[11]
[11] Emphasis added.
The statistic provided in the last bullet point as to the percentage chance of relapse following treatment for ice use (i.e. being 80 to 90 per cent), was put to SZSS for comment on the second day of the hearing.
SZSS contends that this statistic was “only one person’s opinion”. He said that he knew of a number of people who had been able to keep off ice once they had stopped.
The Tribunal notes that the Strategy is prefaced by the following qualification, “There is limited data or research available specific to ice, either in Australia or internationally”.[12] There was no reference in the Strategy to the basis upon which the statistic provided for specified rate of relapse were derived. No other statistically reliable survey material or alternative research statistics were put to the Tribunal by either party.
[12] Refer page 6 of the National Ice Action Strategy 2015.
For this reason, the Tribunal accepts SZSS’s contention that the Tribunal should not find that the rate of relapse was 80 to 90 per cent. However, the Tribunal infers from the information referred to in this Strategy, and in paragraph [49] of these Reasons for Decision, that the risk of relapse with this particular drug is a significant problem due to manner in which the drug works on the body at a biological level. It is a problem that has warranted the Commonwealth Government investing $241.5 million in funding to commission further drug and alcohol treatment services and $10.7 million to support clinical research into new treatment options over four years from 1 July 2016.[13]
[13] Refer
The Tribunal notes the information about stimulants, including ice, provided in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition. Arlington, VA, American Psychiatric Association, 2013 (DSM-5):
Substance Use Disorders
page 483 – The essential features of a substance use disorder is a cluster of cognitive, behavioural, and physiological symptoms indicating that the individual continues using the substance despite significant substance-related problems.
Stimulant Use Disorder
Page 563 – Diagnostic Features…
The amphetamine and amphetamine-type stimulants include substances with a substituted-phenylethylamine structure, such as amphetamine, dextroamphetamine, and methylamphetamine.
…
Individuals exposed to amphetamine-type stimulants or cocaine can develop stimulant use disorder as rapidly as 1 week, although the onset is not always this rapid. Regardless of the route of administration, tolerance occurs with repeated use. Withdrawal symptoms, particularly hypersomnia, increased appetite, and dysphoria, can occur and can enhance craving. Most individuals with stimulant use disorder have experienced tolerance or withdrawal.
Use patterns and course are similar for disorders involving amphetamine-type stimulants and cocaine, as both substances are potent central nervous systems stimulants with similar psychoactive and sympathomimetic effects. Amphetamine-type stimulants are longer acting than cocaine and thus are used fewer times per day. Usage may be chronic or episodic, with binges punctuated by brief non-use periods. Aggressive or violent behaviour is common when high doses are smoked, ingested, or administered intravenously. Intense temporary anxiety resembling panic disorder or generalized anxiety disorder, as well as paranoid ideation and psychotic episodes that resemble schizophrenia, is seen with high-dose use.
Withdrawal states are associated with temporary but intense depressive symptoms that can resemble a major depressive episode; the depressive symptoms usually resolve within 1 week. Tolerance to amphetamine-type stimulants develops and leads to escalation of the dose. Conversely, some users of amphetamine-type stimulants develop sensitization, characterised by enhanced effects.
Associated Features Supporting Diagnosis
When injected or smoked, stimulants typically produce an instant feeling of well-being, confidence, and euphoria. Dramatic behavioural changes can rapidly develop with stimulant use disorder. Chaotic behaviour, social isolation, aggressive behaviour, and sexual dysfunction can result from long-term stimulant use disorder.
Page 564
…
Individuals with stimulant use disorder often develop conditioned responses to drug-related stimuli (e.g., craving on seeing any white powderlike substance). These responses contribute to relapse, are difficult to extinguish, and persist after detoxification.
Development and Course
Page 565
…Patterns of stimulant administration include episodic or daily (or almost daily) use. Episodic use tends to be separate by 2 or more days of non-use (e.g., intense use over a weekend or on one or more weekends). “Binges” involve continuous high-dose use over hours or days and are often associated with physical dependence. Binges usually terminate only when stimulant supplies are depleted or exhaustion ensures. Chronic daily use may involve high or low doses, often with an increase over time.
Stimulant smoking and intravenous use are associated with rapid progression to severe-level stimulant use disorder, often occurring over weeks to months. Intranasal use of cocaine and oral use of amphetamine-type stimulants result in more gradual progression occurring over months to years. With continuing use, there is a diminution of pleasurable effects due to tolerance and an increase in dysphoric effect.
…
SZSS’s criminal record
A National Police Certificate issued on 1 May 2018 states that SZSS has the following convictions:[14]
[14] Refer G-Documents G3/20.
(a)record dated 7 April 2008 - the offences of “aggravated burglary” and “armed robbery” for which he received a community-based order and a suspended prison sentence of 4 months respectively. SZSS was found in contravention of the community-based order on 16 September 2008 and received a suspended prison sentence of one month;
(b)record dated 31 March 2010 - the offence of “theft” for which he was fined $350;
(c)record dated 29 September 2010 - the offence of “armed robbery” for which he received a term of imprisonment of 18 months;
(d)record dated 14 December 2016 - the offences of:
(i)“handle/receive/retention of stolen goods”; “dishon u/take in retention of stolen goods”; “possess methylamphetamine (2 charges)”; “possess cannabis” for which he received a community correction order for 12 months;
(ii)“fail to answer bail”; “unlicensed driving” for which he received a community correction order;
(iii)“fail oral fluid test within 3 hr of driving” for which he received a community correction order and his licence was cancelled and disqualified for 3 months;
(e)record dated 28 November 2017 - the offences of:
(i)“unlicensed driving”; “fail to state name/address to mopf”; “fail to answer bail”; “drive whilst disqualified”; “state false name when requested”; “dishon u/take in retention stolen goods”; for which he received a 12-month community correction order to start from his release from prison;
(ii)“possess methylamphetamine (2 charges)”; “possess ghb”; for which he received a 12-month community correction order;
(iii)“possess drug of dependence (not named)”; for which he received a 12-month community correction order; and
(iv)“contravene community correction order”; for which he received a term of imprisonment of three months served concurrently.
This National Police Certificate also states that on the dates referred to below, SZSS was recorded as having committed offences in Victoria, without conviction, which included the following:
(a)record dated 14 July 2005 - the offences of “unlicensed driving”; “use unregistered motor vehicle – highway” and “theft of a motor vehicle” for which he was released on a good behaviour bond of $200 and was required to pay $250 into the court fund;
(b)record dated 30 January 2008 - when SZSS was 18 years old, a “local law offence” for which he was fined $200 with $59.50 costs;
(c)record dated 13 May 2015 - the offence of “theft-of-bicycle” and “failed to answer bail granted”;
(d)record dated 14 December 2016 - the offences of “fraudulently use plate-uniquely id veh” and “fail to answer Bail Granted” for which he was fined $900.
SZSS has served two separate terms of imprisonment in Victoria. The first was in 2010 for a period of six months. SZSS was sentenced to 18 months imprisonment, but SZSS was released on parole after a period of six months. SZSS served a second term of imprisonment for a period of three months from November 2017 to February 2018.
Following the second term of imprisonment, SZSS was immediately taken into immigration detention, initially at Maribyrnong Immigration Detention Centre (MIDC) in Victoria, then transferred to Christmas Island, and then back to MIDC, where he remains at present.
For the last 12 months, SZSS has either been in detention in a correctional or immigration facility. SZSS has remained in frequent contact with his Father and Eldest Son during this period by telephone. SZSS gave evidence and the Tribunal accepts that he has not taken any ice or other prohibited drugs during this period.
RELEVANT LAW
Migration Act 1958
Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) …; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Act provides that a person does not pass the character test if they have a substantial criminal record. Relevantly, s 501(7)(c) 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. If these pre-conditions are met, the Minister is under an obligation pursuant to s 501(3A) to cancel the person’s visa and does not have a discretion to decide not to consider exercising this power.[15]
[15] Refer paragraph [72] in Falzon v Minister for Immigration and Border Protection (2018) 351 ALR 61.
Section 501CA provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(5) If the Minister revokes the original decision, the original decision is taken not to have been made.
…
A person affected by a decision not to revoke a mandatory visa cancellation may file an application for review with the Administrative Appeals Tribunal under s 500(1)(ba) of the Act.
Section 499(1) of the Act empowers the Minister to give written directions to a person or body having functions or powers under the Act concerning the performance of those functions or the exercise of those powers. Section 499(2A) of the Act provides that a person or body having those functions or powers under the Act must comply with such directions. On 22 December 2014, the Minister issued Direction no.65 under s 499(1).[16] The Tribunal is obligated to apply the relevant primary and other considerations in Direction no.65 in making its decision.
[16] Refer G-Documents G22/113-145.
Section 36 of the Act sets out when protection obligations will arise. Relevantly:
(1)A criterion for a protection visa is that the applicant for the visa is:
(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…
(2A) A non-citizen will suffer significant harm if:
(a)   the non-citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non-citizen; or
(c)   the non-citizen will be subjected to torture; or
(d)   the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
…
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
Direction no.65
Part 6 of Direction no.65 provides a preamble to the directions. Paragraph 6.1(1) of Direction no.65 states that the objective of the Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”. General guidance is provided in paragraph 6.2 of the Direction no.65. Relevantly, paragraph 6.2 provides:
(1) The Government is committed to protecting the Australian community from harm as a result of the criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3) The principles provide a framework within which decision-makers should approach their task of deciding…whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered…in making a revocation decision are identified in Part C of this Direction.
A set of overarching principles are established in paragraph 6.3 of Direction no.65 as follows (as relevant) (emphasis added):
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law-enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
…
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

Paragraph 8 of Direction no.65 requires the Tribunal in deciding whether to revoke the mandatory cancellation of a visa to take into account the primary and other considerations set out in Part C, as relevant to each individual case and also that:
(a)the Tribunal should give appropriate weight to information and evidence from independent and authoritative sources when applying the primary and other considerations;
(b)the primary considerations should generally be given greater weight than the other considerations; and
(c)one or more primary considerations may outweigh other primary considerations.
ISSUES TO BE DECIDED
There are two primary issues to be determined by the Tribunal, namely:
(a)whether SZSS passes the character test as defined by section 501(6) of the Act;[17] and
(b)whether there is another reason why the mandatory cancellation of SZSS’s visa should be revoked.
[17] SZSS concedes this issue.
SZSS’S CRIMINAL OFFENCES
The Tribunal also notes that most of SZSS’s convictions were entered following guilty pleas. At the hearing, broadly speaking, SZSS did not deny that the incidents underlying those convictions took place.
It is well established that in assessing this application, the Tribunal is not permitted to impugn the convictions entered against SZSS – see Minister for Immigration and Multicultural Affairs v “SRT” (1999) 91 FCR 234, Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 247 (Daniele); Minister for Immigration and Ethnic Affairs v Gungor (1982) FLR 441.
However, that does not mean that the Tribunal should disregard the context and the circumstances surrounding the offending behaviour of SZSS. The Tribunal adopts the approach as outlined in the joint judgment of Fisher and Lockhart JJ in Daniele:
The conviction is the genesis of the Minister's power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination and the extent of that enquiry will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial Judge and jury must determine.
Context and circumstances of offending behaviour
At the hearing, SZSS was asked a number of questions by the Minister’s representative and the Tribunal about the context and circumstances in relation to a number of incidents referred to on his criminal record and in the Police and Court documents and reports produced under summons. The Tribunal will deal with each incident in chronological order.
Entry on National Police Certificate – Children’s Court, 14 July 2005 – unlicensed driving; use unregistered motor vehicle; theft of motor vehicle
According to a LEAP Victoria Police Sub Incident Summary Report (LEAP report), this incident occurred in August 2004.[18] SZSS was 15 years old. The LEAP report states that a vehicle was stolen from a rental car business and the keys to the vehicle were taken by offenders while a burglary was committed at the premises, which is also a used car sales yard.
[18] Refer AGS-Documents AGS2/226.
SZSS provided a handwritten response to a letter he received from the Department of Home Affairs in June 2018 requesting further information from him in relation to the cancellation of his visa (SZSS’s Response). In SZSS’s Response, he states:
The night I was arrested for this offence I was a young 15 year old with a group of so-called friends. I was tricked into thinking the car belonged to a friend. I stupidly wanted to drive. Whether the car was or was not his, I should have known better not to drive. I made full admissions to doing the wrong thing and showed remorse and was ordered to pay the fine of $250.00 and was given a good behaviour bond which I completed successfully.
At the hearing before this Tribunal, SZSS said that he had no knowledge of the car being stolen. When he was asked why he drove the car, being 15 years old at the time and without a driver’s licence, he said it was because he had “not driven a car before” and he did “not think about it all”.
Entry on National Police Certificate – Magistrates Court, 30 January 2008 – local law offence
In the LEAP report for this incident, it is recorded as having occurred in November 2007. It states that SZSS had consumed alcohol in the Dandenong Central business district on a date in November 2007.
In SZSS’s Response, he states:
Due to the time frame on how long ago this offence occurred. I have no memory of it at all. I have tried my best to gather my thoughts and memories on what happened. But I’ve had no luck. I’m sorry I cannot answer to the comments you seek.
At the hearing before this Tribunal, SZSS confirmed that he could not remember what had happened. SZSS was referred to the incident as described in the LEAP report, but he said this still did not ring any bells for him.
Entry on National Police Certificate – Magistrates Court, 7 April 2008, armed robbery; aggravated burglary
According to the LEAP report, this incident occurred at 2.20am on 7 August 2007 as follows:[19]
[SZSS] and [name omitted] have entered Coles Express. Both offenders had blue and white bandanas covering the lower halves of their faces and SZSS was armed with a screwdriver. SZSS has got the console operator out from behind counter and engaged him in conversation. He had then grabbed the vic around the neck, produced the screwdriver and demanded money. SZSS has then dragged vic back behind counter, opened till and removed $161.50 cash. [name omitted] has then gone behind the counter and removed 9 pkts of cigarettes, both off(s) have then left scene on foot. They have been apprehended a short time later…Both made full admissions to armed robbery.
[19] Refer ASG-Documents ASG2/223.
A judge of the County Court in Victoria made the following sentencing remarks when handing down the sentence for this offence, which included a wholly suspended 4-month term of imprisonment and a 12-month Community Corrections Order (CCO) subject to a number of conditions aimed at rehabilitating SZSS given his young age at the time his committed this offence (i.e. he was 17 years old):[20]
[20] Refer ASG-Documents ASG4/287-297.
…
By way of background, you [SZSS and the co-accused] were both aged 18 at the time these offences were committed. It appears on the evidence that you had in the period leading up to the offending, both consumed significant amounts of alcohol.
In the early hours of Tuesday 7 August 2007 you both attended at your home [SZSS], where you agreed to commit an armed robbery. Your then armed yourselves with a screwdriver and left the address on foot.
In respect of Count 1, a count of aggravated burglary, at about 1.50 a.m. on this day, the both of you attended the Seven-Eleven Store located at [name of suburb omitted]. You were both wearing hooded jackets and you had bandanas around your faces.
You were allowed into the store by the lone attendant and you attempted to engage the attendant in conversation and sought to get him to leave the area behind the counter. You were unsuccessful. You left the store and then returned. Again you endeavoured to persuade the attendant to leave his area behind the counter. That was unsuccessful. Your remained in the store for about 20 minutes in total and then left the store.
In respect to Count 2, a count of armed robbery, at about 2.20 a.m. the two of you attended at [a service station]. You were again wearing hooded jackets and you had bandanas covering the lower halves of your faces.
The console operator, [name omitted], was working alone. He unlocked the door and you both entered. You [SZSS] approached the counter and asked for some chips. You then walked around into the service area, where the victim was standing. You grabbed him by the collar of his shirt, produced a screwdriver and said, “Give me all your money”.
The victim understandably was extremely scared he was going to be injured if he did not do what he was told. You moved over to the till and removed some money, which totalled $161.50. Your [co-accused] then took nine packets of cigarettes from the display behind the counter. You both left the store on foot. You [SZSS] discarded the screwdriver, a baseball cap and jacket in shrubs at a nearby restaurant.
You were subsequently arrested by police in the vicinity. You were taken to the police station and interviewed. During that interview you [SZSS] told police that you were depressed about family matters. You felt like doing something bad and asked your cousin if [they were] prepared to commit an offence with you. You took the screwdriver from your father’s tool box and attended the [service station] and in respect to the armed robbery, you told the police that you wanted to get money and you had the screwdriver because you thought that would assist you to scare them.
…
…Six, the offences you have pleaded guilty to are serious, but there was little planning and at least in respect to Count 1, is at the lower end of this type of offending to come before the courts.
.. Eight, you have completed with your obligations under the supervision bail program and have received counselling regarding alcohol abuse.
…
I have considered and determined that you both have good prospects of rehabilitation yet, each of you is young, you have committed serious crimes and there is a risk that each of you may go back to your old ways and commit further offences in similar circumstances.
…
It must be kept in mind that each of these offences carry a maximum penalty of 25 years imprisonment. They are regarded as very serious criminal offences.
…I have determined to impose a [CCO] on Count 1 and a wholly suspended sentence of imprisonment in respect to Count 2. In my view, the offence of armed robbery was a serious example of a serious offence committed on a soft target and requires a stern sentence, but one which permits both of you to remain in the community.
…
In SZSS’s Response, he states the following about these two offences:[21]
At the time of this offence I was with an ex-friend drinking and on drugs. I was not in the right state of mind and under the influence. I made the wrong choice by following that high I had and committing that crime I made myself a part of. Although I was strongly influenced by drugs and alcohol. That’s no excuse for my actions. I know that the choice I made was wrong of me and regret it. I took full responsibility for my actions and accepted the consequences laid before me.
[21] Refer G-Documents G9/60.
At the hearing before this Tribunal, SZSS said that he could not remember if he had grabbed the victim around the neck, but that, “it could have happened”. SZSS said he had taken alcohol and cannabis, but he could not remember if ice was involved, stating that he had “blocked it out” and that “it happened a long time ago”. SZSS gave evidence that at the time of this offence he was working with his uncle doing the shop-fitting work.
Entry on National Police Certificate – County Court, 16 September 2008 – breach of community-based order
SZSS breached the CCO imposed on him arising from the aggravated burglary for which he was convicted on 7 April 2008. He was prosecuted in the County Court and convicted of breaching the community-based order, leading to the imposition of a one-month imprisonment term suspended for a period of 12 months.
In SZSS’s Response, he states:[22]
Around this time, I breached my [community-based order] because I believed I got real lazy and annoyed that I was working hard and wasn’t getting paid for it. I know that I wasn’t getting paid at all but still made the decision to stop going. At that time I knew that the punishment I received was a slap on the wrist but took it for granted and that’s one decision I should never have made. I should have kept going with my [community-based order] and got it done. That was the least I could of done and just complied.
[22] Refer G-Documents G9/60.
At the hearing before this Tribunal, SZSS said that he remembered saying that he was annoyed that he was working hard and not getting paid for it. He said that he now realises that he should have just done the work and not complained about it.
Entry on National Police Certificate – Magistrates Court, 31 March 2010, theft
The LEAP report for this incident states that SZSS committed the following offence on 17 November 2009:[23]
Offender… staying at victims [name omitted] house after staying the night at same. At approx 10.45am the offender … has stolen $100 and a packet of “Choice” cigarettes from the victim’s purse and taken off on foot….
[23] Refer AGS-Documents ASG2/222.
In SZSS’s Response, he states:[24]
Being so long ago I cannot remember being charged with this theft offence. I can say I’m pretty sure that around this time I was definitely using drugs and alcohol. Surrounding myself with the wrong company. I’m sorry for this theft offence even though I don’t remember it, but I understand my actions were my own and take full responsibility.
[24] Refer G-Documents G9/59.
At the hearing before this Tribunal, SZSS was asked whether the description of the incident in the LEAP report assisted him to remember this incident. SZSS said he could not remember this incident at all.
Entry on National Police Certificate – County Court, 29 September 2010 – armed robbery
The LEAP report for this incident states that SZSS committed the following offence on 19 February 2010:[25]
..the accused was picked up from his home residence …by a friend …in her family’s motor vehicle … also had her young 2 year old son in the motor vehicle and another male known as…
…at approximately 2.15pm, on this day, the accused has walked a short distance into the milk bar and pulled a kitchen knife from his pocket which he had brought with him from home. The accused has held the knife in his right hand and demanded money from the male owner of the milk bar who was behind the counter. The owner’s wife has heard this and has gone to the cash register and removed the contents which have been given to the accused as they were in fear. The amount was estimated to be $1500. The accused has grabbed the cash and fled from the store via the front door. The accused has got back into the motor vehicle and asked [name omitted] to drive off…
…during this time the accused has driven to … in another motor vehicle and spent some of the money on food, alcohol and petrol.
…offender interviewed at … on 19/02/2010 making full admissions to his involvement. [SZSS] remanded in custody…
[SZSS] granted bail with conditions on 03/03/10…
[25] Refer ASG-Documents ASG2/220&221.
A judge of the County Court in Victoria made the following sentencing remarks when handing down the sentence for this offence, which included an 18-month imprisonment term:
Briefly, at about 2 pm on Friday 19 February 2010, you entered the [convenience] store located at [address omitted], armed with a knife. You had a T-shirt over your head and a bandana on your face, in an attempt to disguise your identity. You pulled out the knife and threatened the owner, [name omitted – male], and said “Give me your money.” He told you to put away the knife and that he would get the money. You kept screaming at him to “Just open it.” Eventually, his wife, who was upstairs, heard the commotion and came into the shop. She opened the till. You then took handfuls of notes and ran out of the shop to the nearby car. That car was being driven by a friend, who was not aware of your plan to rob, and you ordered her to drive off. Approximately $1,000 to $1,500 was stolen. This is a serious example of this type of offending.
You were quickly apprehended by the police and in a record of interview taken that evening, you made full and frank admissions. The explanation for your offending was that you were angry because of tension between yourself and your former partner, with whom you have a two year old son, [name omitted]. You were not working at the time and had had a big night the previous night drinking and using drugs. The plan to rob was formulated quickly and without any real thought as to the consequences. Whilst those facts provide a context for your offending they in no way excuse your offending on this occasion.
The victims in the armed robbery did not file any victim impact statements. I have, however, read their police statements and am satisfied that they would have been extremely scared by what you did on that occasion.
…
SZSS was 20 years old at the time of this offence. In SZSS’s Response, he states:
At this time of offending I was in such a bad place. The mother of my child was unfaithful and had left me. My heart was so broken that I wasn’t thinking clearly. And I turned to the drugs and alcohol again. I was heavily intoxicated with drugs and felt that was my only escape at the time. Everything that was going through my mind was nothing other than reckless thoughts and stupid courses of action. I chose to do the wrong thing as I let my emotions get the best of me. The regret I live with from that incident is very painful. Just knowing what I did to the victims and what my choices made me do were more than dishonest and selfless. Words cannot describe the hate I felt for myself. I believe that the decision to put in prison was the most appropriate and effective course of action. I needed that wake up call to know the world was much more bigger than my problems.
At the hearing before this Tribunal, SZSS said the shop that he robbed was not far from where he was living. He confirmed that he had a female friend in the car with him (together with her two year old child), and another male friend. His friends did not know about his intention to rob the store.
SZSS said he had been into the shop previously and he that he knew the husband and wife. He said he also knew that they had children. SZSS said he did not see the children in the shop when this incident took place, but he heard the wife screaming and he heard a child out the back. He suspected that they knew it was him who had committed this offence. He said he was very down on himself about having stolen from them (i.e. in particular, because he knew them).
SZSS said he subsequently made inquiries with the police to return the stolen money to make amends. However, he said the police told him, in effect, to stay away from the husband and wife.
SZSS confirmed that he had taken ice when this incident took place and that he had more than he should have had. He also said that this was “the old him” (who committed this offence), and that he was “a different person now”.
Entry on National Police Certificate – Magistrates Court, 13 May 2015, theft of bicycle
The LEAP report for this incident states that SZSS committed the following offence on 22 January 2015:[26]
…
Attended Clayton CBD/rail station after receiving information from railway worker who witnessed unknown males break lock which held unknown victims bike to hand rail outside Clayton rail station. Male broke lock and removed bike from area. Attended Coles supermarket car park and observed males matching description of witness. [SZSS] was in possession of Merida mountain bike. [SZSS] questioned re bike and made admissions and was arrested and conveyed to Oakleigh Police station for interview….Other males details taken at scene and IR submitted.
…
Fail to answer bail…
Warrant to arrest…
[26] Refer ASG-Documents ASG2/218.

SZSS was 25 years old at the time of this incident. In SZSS’s Response, he states:[27]
I’m sorry to notify you that I have no memory of this offence at all. I believe I’m unaware of the occurrence. I may have been going through a phase in life at the time. Even though this incident has happened I’m truly sorry that I committed thievery. I apologise that I cannot recall more information for you.
[27] Refer G-Documents G9/58.
However, at the hearing before this Tribunal, SZSS said he was able to remember this incident, but that he did not steal the bicycle. He said someone else had stolen it, not him. He said the police found him riding on it, so he was charged with the theft of the bicycle. The Tribunal asked SZSS whether he was at the Clayton railway station with the person at the time they stole the bicycle. SZSS answered in the affirmative. SZSS said he “should not have ridden the bicycle” and that “it was stupid”.
Entries on National Police Certificate – Magistrates Court, 14 December 2016 –handle/receive/retention stolen goods; dishon u/take in retention stolen goods; possess methylamphetamine (2 charges); possess cannabis; fail to answer bail; unlicensed driving; fail oral fluid test within 3hr of driving; fraudulently use plate-uniquely id veh; fail to answer bail granted, and 28 November 2017 – Unlicensed driving; fail to state name/address to mopf; fail to answer bail; drive whilst disqualified; state false name when requested; dishon u/take in retention stolen goods; possession of methylamphetamine (2 charges); possess ghb; possess drug of dependence (not named); contravene community correction order
The Tribunal will deal with these two National Police Certificate entries on 14 December 2016 and 28 November 2017 collectively, as SZSS had some difficulty remembering details (i.e. specific dates) of the incidents that gave rise to the various offences. From the Tribunal documents and with assistance from the Minister’s representative and SZSS, the five separate incidents that took place in 2015, 2016 and 2017, are outlined below.
Incident #1 - Theft of petrol using stolen registration number plates on 8 June 2015. A LEAP report was provided to the Tribunal containing allegations that SZSS engaged in the following conduct on 8 June 2015:[28]
…unknown offender has stolen 2x number plates [number omitted] from victims vehicle which was parked in the carport at [address omitted]. The stolen plates were then used in a petrol drive-off at United Service Station at approx 2055hrs on 08/06/15. …new management started on 10/06/15 - all CCTV files wiped at this time…
…Registration…listed as stolen…the accused was arrested and taken to [the police station]…and was released pending summons.
[28] Refer G-Documents SG2/216&217.
SZSS was 26 years old at the time of this alleged incident. At the hearing, SZSS said he had no memory of this incident. The Tribunal asked him whether he had ever taken registration plates from another vehicle and placed them on his own for the purpose of filling up with petrol and driving off. SZSS admitted to having done so previously. He said he could not remember the last time he had done so. SZSS was given an opportunity to explain why he would have engaged in such conduct. He said, at a guess, he would have done so because he did not have any money at the time. He said “that was the me then, three years ago; not the me now”.
Incident #2 – driving-related and drug-related offences on 29 February 2016. A Victoria Police affidavit and preliminary brief dated 31 May 2016 states that at 10am on 29 February 2016, the police pulled over a car because it did not have affixed to it any registration number plates. SZSS was driving the car. He held a learner’s drivers permit but there were no L-plates affixed to the car, nor was there a fully-licensed driver accompanying him. The registration of the car had expired on 30 April 2014. The police inspected the car and found that it had two bald tyres and its headlights and rear brake lights were not functioning.
A young woman and an 11-month old child were sitting in the rear passenger seat of the car. The child was unrestrained and sitting on the lap of the woman. The police administered a preliminary breath test on SZSS and no alcohol was found to be present. The police also administered a preliminary oral fluid drug test on SZSS. The result prompted police to require him to undergo a roadside oral fluid drug test. SZSS provided an oral fluid sample at 10.23am on 29 February 2016. The sample was tested on 11 March 2016 and found to contain a prescribed illicit drug (ice). SZSS admitted to police having consumed ice at 1am on 29 February 2016. SZSS provided as his reason for driving under the influence of a prescribed illicit drug that he was helping his friend.[29]
[29] Refer ASG-Documents ASG1/74-76.
In SZSS’s Response, he states:[30]
When I was pulled over for this offence I was not under the influence that day but I had been a few days before that. I was driving to a girlfriend’s place to pick her and her son after being abused and left out on the street by her step-father. I acknowledge that I had done the unlawful thing by grabbing vehicle plates from another car and putting them on mine but also knowing I should have called the police instead. I was worried for her safety but forgetting about my own. I am thankful that they were safe but just the way I went about the situation was wrong and could have done the right thing and went with a much more safer solution.
I believe some of the offences were not all at the same time.
I believe the time I failed to answer bail was because I had not been notified and that was because I didn’t have a stable place at the time. I was moving around a lot although I know I should have checked in from previous matters such as the incident above.
I wish I had of done things a lot differently now where a more productive outcome could have been preferred.
[30] Refer G-Documents G9/57.
At the hearing before this Tribunal, SZSS said he knew he had done the wrong thing but he did not think it through, as he was trying to help his friend before she suffered harm at the hands of her abusive partner. SZSS said he was not on ice at the time of this incident but he had been on it “the night before”. He claimed not be suffering from the effects of it. He said he could not remember having an oral fluid test. When questioned, he said he did not call a taxi or an Uber instead of driving, because he did not have the money to do so. He said he was acting to try to help a friend who was in trouble.
Incident #3 – Police search of SZSS’s bedroom under warrant on 21 June 2016. A LEAP report was provided to the Tribunal containing allegations that SZSS engaged in the following conduct on 21 June 2016:[31]
[31] Refer ASG-Documents ASG2/215.
…search warrant was conducted at [address omitted], male present [SZSS]. …SZSS’s room searched where [name of officer omitted] located the following items:
1x small silver container containing
3x proscription(sic) tablets
1 x ziplock bag containing white crystal substance
-small ziplock bag containing white crystal substance
-black glasses case containing small ziplock bag with white crystal subtance inside
-multix ziplock bag containing gvm(sic)
-cigarette packet containing zip lock bag with white crystal substance insider
refer exhibit log for locations found.
[SZSS] arrested …and conveyed to [police station]
…
[investigation] conducted. Admissions made.
Bailed to attend … Magistrates Court on 28/06/2016.
…
At the hearing, SZSS said he remembered the search that took place on 21 June 2016. He did say anything further about this incident.
Incident # 4 – SZSS questioned about presence of methylamphetamine in a car that SZSS was riding in as a passenger. A LEAP report was provided to the Tribunal containing allegations that SZSS engaged in the following conduct on 12 July 2016:[32]
On Tuesday the 12^th day of July 2016 at around 4.40am, the accused [SZSS] was the back seat passenger of a vehicle registration [number omitted] which was intercepted by police on [located omitted]. A search of the vehicle revealed a small beige bag on the floor of the vehicle in the rear, where the accused was sitting. The bag contained several empty zip lock bags and one containing a small amount of methylamphetamine. [SZSS] was arrested and transported to the [name omitted] police station for interview.
[SZSS] was released ITS.
[32] Refer G-Documents SG2/214.
At the hearing, SZSS said he remembered being pulled over by the police. He said his friend’s father had reported the car stolen, but it was not. He said he was using ice at the time of this incident. He said he also remembered being taken to the police station. He said he did not remember anything about a beige bag. He said the police had asked him about his “old charges”. He said he told the police that the ice was not his. SZSS told the Tribunal the bag of ice belonged to the person who was driving the car. SZSS was 27 years old at the time of this incident.
Incident #5 – SZSS searched at Noble Park railway station and found in possession of stolen credit card and a prescription tablet. A LEAP report provides the following account of the incident on 10 November 2017:[33]
At 2200 on the 10^th of November, 2017 the accused was located with a known female at the Noble Park Railway Station by Senior Constables [names omitted].
The accused provided police with his name.
The accused was arrested and searched at the scene.
Located in the right pocket of the accused pants was 1 x prescription tablet for tri-est 2.5mg in the name of [name omitted].
Located between clothing in the bag of the accused was a commonwealth bank credit card in the name of [name omitted] the credit card is brand new and unsigned. Police believe the card to have been stolen from a letter box of [name omitted].
…
The accused was remanded in custody.
[33] Refer ASG-Documents ASG2/212&213.
In SZSS’s Response, he states:[34]
At the time of these offences when I stated false identity I knew I was doing the wrong thing. I knew that the consequences were going to be [?] severe and that’s way I had told the police a different name. I deeply regret making up a lie to the officers but it was because I was afraid about going back into jail. Also that I had some illegal substances on my possession. But I now know that I could have went about things in a much more honest approach. Having that I regrettably did not comply with my corrections order also took place in why I was dishonest. Making it worse for myself was not the smartest move I made. Specifically driving with a licence. I understand that there’s ways I could have travelled but unlawfully should never have been one of them. I realise the harm I could have caused to myself or to someone else could have been unforgiveable. I understand and take full responsibility of my stupid actions. I am forever remorseful of the dishonest decision I made. I have since then become a much more mature person and decision maker. I now take the path of being a more responsible man with everything I do .
[34] Refer G-Documents G9/55.
At the hearing before this Tribunal, SZSS said that the friend he was with had handed him some things, which included the credit card and tablet for him to hold, and he placed them in his pocket. SZSS denied ever having stolen the credit card in question.
SZSS’S SUBMISSIONS
SZSS lodged a set of submissions entitled, “Reasons to stay” on 8 October 2018 (SZSS’s Submissions) which the Tribunal has carefully considered. The key points were stated on the first two pages as follows:
·children are in Australia;
·spent most of my life in Australia
·no ties to New Zealand (and my family is in Australia);
·no real crimes of serious nature for nearly 10 years;
·rehabilitation programs and courses successfully completed during my time;
·changes I’ve made to better myself in the community and as a person;
·having a job upon release from detention;
·I feel I’ve paid my dues being away from my family and kids;
·feel that I’m being robbed of my freedom in Australia because of the deportation;
·I feel the department focused on all the negatives in my case with my past rather than any of the positive changes I’ve made with programs;
·I acknowledge my wrong doings and have been more than remorseful and have committed myself to pursue a more functional and stable healthy living;
·I feel I deserve to be in Australia without people looking at me thinking I’m a criminal when I’m not anymore and haven’t been in a while.
The Tribunal has also carefully considered SZSS’s Response.[35]
[35] Refer G-Documents G9/55-65 and G14/79-90.
SZSS made oral submissions at the end of the second day of the hearing as follows:
With my charges with the armed robberies, yes, I do acknowledge that they were serious charges, but getting judged for them now for – this happened years ago – and getting judged on these charges today for what I’ve done in the past. I don’t – I know they were serious crimes, but I don’t agree that I’m that type of person anymore, you know what I mean. I don’t know how to explain it properly, but it’s like – it’s like everything goes back to that, those two charges.
…
…I do care about all the things that I’ve done, all my charges, you know, I do acknowledge them and I do want to right the wrongs. Yes, like I say I care about – I care about what my charges, like simply because that’s what has – that’s what’s put me here today, and I want to better them, you know, and I want a better me. I don’t have a drug dependency any more. Yes, I’ve been in here without it, but it can still be proven out there, out in the community. It can still be proven that I’ve changed, that I’m not the same man I used to be. This is the only way it’s going to be shown to you (indistinct). I can tell [you], like I was saying the other day, I could tell [you] that I’ve changed and all this, but I have to show it, and if not given the chance to show it then, well – you know.
SZSS made further closing submissions on the third and last day of the hearing on 29 October 2018 as follows:
I believe [Member] that I am worthy of remaining in Australia not only as a New Zealander but having grown up in the beautiful country as a permanent resident who can make a difference here. I would humbly request that you consider the positive changes I’ve made in myself as a person, a father, a friend, a family man, a countryman, [whose] sole focus and determination is to purely now succeed and better himself in Australia. I want to share with you how I plan on achieving my future goals. These necessary steps I believe will guide me on the right path.
…
SZSS submits that he had been offered employment should he be released into the Australian community. He said he has a strong interest in pursuing further studies to enable him to secure employment as a youth worker. He said his past experiences would assist him to help young people who are on the wrong path and to guide them in the right direction. He said he will explain to young people that he is living proof that it is possible to turn one’s life around.
SZSS said that a family friend, Ms TAW, has been kind and caring and had offered him a place where he can stay to help him get back onto his feet if he is released back into the Australian community. He said Ms TAW’s love for helping others had inspired him and had given him the urge to do the same.
SZSS said he hopes to be a part of Eldest Son’s activities and sports, in particular rugby which he said he used to coach in high school. He said he plans to obtain a full driver’s licence so he can travel for work, to attend study and to collect his sons on weekend’s when he cares for them and so they can travel places, such as sightseeing and rugby games. He said he wants to obtain a licence so he can legally drive and follow the road laws.
SZSS said almost all of his immediate family is in Australia and he has a great relationship with them, which he would “love to continue”. He said one of his main intentions is to repair his relationship with his older sisters. He said he missed having them in his life and would like the chance to prove to them that he has really changed who he is now, and that he can be trusted. He said his first step toward achieving this, is to “better himself first” by getting on his feet and returning to work and study. He said he thinks this is the only way their relationship may be repaired, as they will be able to see he is making progress and he has goals and morals in his life. SZSS said he wanted to show them how important they are to him and that he needs them in his life. He said he could not wait until he visits and spends time with his sisters.
SZSS said his children meant the world to him and that he would be “absolutely nothing without them”. He said his children are his ultimate drive in succeeding and all the determination he has now is for them (and himself). He said:
I want to be here with them as their father and to give them every possible chance in life. They deserve to grow up with their father by their side. I’d love to watch them through their school years. Help them with their first disco in primary school to their graduation at high school. I want to be there to put a Band-Aid on bodies when they injure themselves or be there when my sons need me because [they’re] feeling heart break or feeling down. I want to be here to comfort them like how my [Father] did for me.
In closing, SZSS said:
[Member], I would like to finish my final statement by asking you to please consider all the positive changes I’ve made and am determined to make in my future here in Australia. Rather than the negatives of my past, I can say they now only a reflection that once was. I have set my goals in place and ready for the challenges ahead of me. I am purely focused on my family, my studying, and achieving success in my endeavors…
SZSS said he had not taken ice for the last 12 months, while he had been in correctional and immigration detention. He said he had not been asked to undergo a urine test during this period. He said he attended the gym each day. The clinical notes of IMHS produced by SZSS at the request of the Tribunal revealed that he had been badly assaulted while he was in immigration detention on Christmas Island.[36] When this occurred, it seemed that SZSS had reached out for counselling and some assistance to help him get through that difficult time. There was no evidence in those notes that SZSS was presently taking any prohibited substances. He referred to using drugs previously, but only in the past tense.
[36] Refer Exhibit “A3”.
FATHER’S EVIDENCE
Father gave evidence at the hearing of this application in support of SZSS remaining in Australia. Father impressed the Tribunal as a credible witness and an honorable man who made great sacrifices in his life to provide for and support his children. Father gave evidence that he is a New Zealand citizen and holds a New Zealand passport.
Father said he decided to move his family, SZSS and the Sisters to Australia to provide them with better opportunities. He gave evidence that all of his daughters were now employed: the eldest daughter as a teacher; his second eldest worked in a food stand at a market and his youngest daughter was also employed. He said his two eldest daughters had families of their own.
Father gave evidence that his youngest daughter and SZSS had “mixed feelings for each other”. He said there was a specific incident of conflict between them about five years ago. He said the trouble between them first started when they were living in Australia (not while they were in New Zealand). Father said that SZSS would not be welcome to move in with him because he lives with his youngest daughter, and the house they live in is owned by her. Instead, Father said SZSS would be able to live with one of their family friends, Ms TAW, if he was released back into the Australian community.

While the Tribunal hopes to be proven wrong in time, the medium level risk that the Tribunal considers still exists that SZSS will relapse and in turn, re-offend in the future, weighs against revoking the decision to cancel his visa.
Best interests of minor children in Australia affected by the decision
Paragraph 13.2(1) of Direction no.65 requires that the Tribunal make a determination about whether revocation is, or is not, in the best interests of any minor children in Australia. In making that determination, the Tribunal is required to have regard to the factors set out in paragraphs 13.2(4)(a) to (h).
SZSS completed a Department of Home Affairs Personal Circumstances Form in about January 2018 (PCF).[51] In the PCF, SZSS named his eldest son and disclosed that prior to his incarceration; he was advised that he may also be the father to an unborn child. When prompted on the PCF to describe his relationship with “each child”, SZSS states:[52]
I have a very close relationship with my son. He looks up to me, sees me as a massive role model. He has a similar relationship with his grandfather. Prior to coming into custody he was living with me, they relocated to Qld for a period time, during this time I made regular visits to Qld to see him or arranged for him to come here to see me. I taught him and supported him with all of this activities including skateboarding, sports such as rugby. I have regular phone contact with him when he is staying with his grandfather, approx. every 2^nd weekend.
[51] Refer G-Documents G7/41-52.
[52] Refer G-Documents G7/47.
When prompted on the PCF to describe the impact the cancellation of SZSS’s visa would have, or has had, on the child listed, SZSS states:
My son would be devastated and wondering where I am and why we can’t be together. He would not have the opportunity to have me constantly in his life to provide love, support and guidance and be the father to him that my father was to me.
SZSS contends that the decision to cancel his visa, requiring him to return to New Zealand, would impact on his relationship with Eldest Son and it would also mean he would be prevented from establishing a relationship with his youngest son.
The Tribunal accepts the evidence given by SZSS that:
(a)he lived with his eldest son for a period of two years after he was born;
(b)Ex-Partner relocated with Eldest Son to Queensland when he was four years old;
(c)after they relocated to Queensland, SZSS visited his eldest son once every two months when he could afford to fly to Queensland.
The Tribunal accepts SZSS’s evidence that he has not met his youngest son but would like to be able to meet him and form a relationship with him. As mentioned above, the Tribunal accepts SZSS’s other evidence in relation to the degree of closeness he has with Eldest Son and that which he would like to have with Youngest Son.
SZSS gave evidence that he was transferred from prison to a detention centre in Victoria in February 2018 for a short time before being transferred to detention in Christmas Island. He said that was a difficult experience for him. He said he was transferred back to the detention centre in Victoria about one month ago. He said while he was in the detention centre in Victoria, Eldest Son had not visited him but only on account of the difficulty Father would have in complying with the online booking process involved for visitors to attend at the detention centre.
The Tribunal notes that Eldest Son is presently cared for by Ex-Partner, as has always been the case and Father, on every second weekend. The Tribunal also notes and accepts the evidence given that Eldest Son lives with his grandmother and great grandmother.
The Tribunal acknowledges that there is a strong parental and emotional connection between SZSS and Eldest Son. The Tribunal also acknowledges that if the opportunity to present itself in the future, a strong bond would also form between SZSS and Youngest Son. The Tribunal is satisfied the SZSS is a loving father and has the best intentions to be a good father for both of his sons.
However, the Tribunal is not without some concern that should SZSS relapse and commence using ice again, that SZSS may inadvertently place his children in harm’s way or he may himself do harm to them, whether it be psychological or physical. If a relapse occurred, SZSS’s regular presence in their lives may potentially be detrimental to his sons. It may result in his sons being exposed to illicit drugs or result in them experiencing the behaviour or after-effects of a person under the influence of or coming down from a powerful drug, such as ice. At the very worst, it may result in his sons being exposed to engagement in criminal behaviour as a way of life.
Despite those risks, the Tribunal considers that on balance, it would remain in the best interests of Eldest Son and Youngest Son for SZSS to remain in Australia. As highlighted by the representative for the Minister, the strength of the bond between SZSS and Eldest Son in particular, outweighs the potential detriment they may suffer, should SZSS return to his previous ways. SZSS is also mindful that both children have primary carers, including Ex-Partner, Younger Son’s mother and SZSS’s own Father, who are likely to act to protect those children from any harm, should SZSS relapse.
Based on those matters, the Tribunal considers that on balance, it would be in the best interests of SZSS’s two children to revoke the cancellation of his visa.
Expectations of the Australian Community
Paragraph 13.3(1) of Direction no.65 requires the Tribunal to take into account the following:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
When a person has a criminal history of offences “against the person” such as armed robbery, and repeated offences indicating a reckless disregard for protective road laws once under the influence of drugs, the Tribunal considers that the Australian community would expect the deportation of a visa holder, despite the fact that they have spent a most of their life in and have very significant ties to Australia.
The Tribunal is satisfied that in the circumstances of this case, the Australian community is likely to expect SZSS’s privilege (to remain living in Australia), to be removed, on account of:
(a)SZSS’s history of repeated criminal offending with over 20 convictions, over a period of a decade; four of which resulted in sentences of imprisonment;
(b)the severity of some of those offences including armed robbery and driving while under the influence of ice;
(c)the harm caused to the victims of (and witnesses to) the offending behaviour, taking into account their particular vulnerabilities; and
(d)the cost to the community of policing and enforcing the law and to fund SZSS’s periods of incarceration and subsequent corrective and supervisory programs.
The Tribunal is satisfied that the Australian community would expect that SZSS, having had past opportunities through CCO’s and various drug and alcohol programs, with no corresponding reform to his lifestyle and resulting behaviour outside of a structured environment, should not be provided with any further opportunity to change his ways while living within the Australian community. The Tribunal considers that the Australian public, like the Tribunal, would hope to see SZSS carry through his good intentions of changing his ways, but that this should take place in SZSS’s home country of New Zealand and not in Australia.
OTHER CONSIDERATIONS
There are other considerations relevant to this application that should be considered in revocation matters which are identified in paragraph 14(1) of the Direction. It provides that:
(1) … These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interest;
d) Impact on victims;
e) Extent of impediments if removed.
International non-refoulement obligations
Paragraph 14.1 of the Direction provides as follows in relation to Australia’s non-refoulement obligations:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)       The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3)       Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4)       Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48 A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
Consistent with the decision of the Full Court of the Federal Court of Australia decision in BCR16 v Minister for Immigration and Border Protection [2017] FCFCA 96, the Tribunal considers that where a person affected by a mandatory cancellation raises, as a reason in favour of revocation of the visa cancellation, a fear of harm in her or his country of nationality, the Tribunal is required to turn its mind to any international non-refoulement obligations that might arise if that affected person were returned to their home country. In undertaking this task, the Tribunal is not required to conduct an extensive assessment. The level of analysis required is less than that would be required in assessing a claim for a protection visa.[53]
[53] See Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513.
The conventions referred to in Direction no.65 are aimed at Australia’s obligations to avoid particular types of harm occurring to a person in the event that they were to be returned to their country of nationality.
SZSS asserted that he was concerned about returning to New Zealand on account of the gangs he would be exposed to and that they carried weapons. At the hearing, he said that a lot of his family members were involved in gangs. SZSS was asked at the hearing whether he had any evidence to support his assertion in relation to his fear of gangs. He said he had no evidence of this. He said he could avoid it if he stayed away from his relatives who were involved in such activities. He said this would mean that he would be isolated. He said they also might come looking for him because they might want to recruit him to be involved.
While SZSS did not specifically raise for consideration in favour of revocation, a fear of harm in his country of nationality, his concern about gangs as referred to above could be characterised as such. The Tribunal is mindful that SZSS was self-represented in this application and at the hearing.
The Tribunal has made an assessment of whether SZSS has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal also assessed whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of SZSS being removed to New Zealand, there is a real risk that he will suffer significant harm.[54]
[54] Refer s 36 of the Act as reproduced in paragraph [60] of these Reasons for Decision.
The Tribunal is unable to identify on the evidence before it, upon which a finding could be made, that there is any real risk of significant harm that SZSS would face personally if he was returned to New Zealand. His own evidence was that he could avoid any risk of being involved in the gangs by staying away from his relatives who may attempt to “rope him in”. Father’s evidence was that the only one of SZSS’s relatives, who was involved in a gang, as far as he was aware, and that this person would not do anything to hurt SZSS. The Tribunal also considers that SZSS could avoid any risk of harm by refusing any invitation by gang members, relatives or not, to become involved with them.
Accordingly, the Tribunal is not satisfied that there is any basis upon which to conclude that SZSS would be at risk of a specific type of harm that would trigger an international non-refoulement obligation within the meaning of paragraph 14.1 of Direction no.65, if he were to be deported to New Zealand.
The strength, nature and duration of ties to Australia
The Ministerial Direction at paragraph 14.2 addresses the matters to be taken into account for this consideration:
(1)The Strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
SZSS arrived in Australia at the age of nine and has lived in Australia for 20 years of the 29 years of his life. He completed most of his schooling in Australia. At various times, SZSS has been employed in Australia. He has a large extended family living in Australia and a significant network of friends. His Eldest Son who he is close to and Youngest Son are both based in Australia.
SZSS gave evidence that if he was not permitted to remain in Australia, he, his family and friends would be devastated. The Tribunal accepts from the evidence given by SZSS and Father that they had a close familial relationship and also that SZSS had a close relationship with Eldest Son, despite the distance that has between them for a long period of time. The Tribunal accepts that SZSS has every intention of becoming a devoted and caring father for Eldest Son (and Youngest Son), and to try to become a positive role model for them both. SZSS’s greatest challenge will be in realising his goals, upon being released into an unstructured environment where he will have ready and unmonitored access to prohibited drugs, in particular, ice. The Tribunal encourages SZSS and hopes he will be able to achieve those goals, once tested into the future.
The Tribunal acknowledges that if SZSS is returned to New Zealand, he would be without the immediate support of Father, other family members and friends. However, he will not be without family support altogether as he will live with his biological mother and biological sister when he returns. SZSS will also be able to maintain communication with Father and Eldest Son by telephone or video calls.
The Tribunal acknowledges that if SZSS returned to New Zealand it would make it difficult for him to progress his current friendship and potential relationship with the 23-year old student referred to in paragraph [33] of these Reasons for Decision. The Tribunal notes that this new friend of SZSS did not give evidence at the hearing. This new friend of SZSS is young, unemployed and when she has completed her studies may be at liberty to join SZSS in New Zealand should she wish to do so.
As already mentioned, Father and Eldest Son will be able to make trips to New Zealand to visit SZSS and to assist to him to settle in and build a new life for himself. In time, when Youngest Son is old enough, and his mother consents, he may also be able to communicate with SZSS by using the channels of communication referred to above, or if his mother permits and facilitates it, he would be at liberty to visit SZSS in New Zealand.
In terms of the other elements of paragraph 14.2 of Direction no.65 (for instance, paragraph 14.2(1)(a)(i)), the Tribunal notes that SZSS’s offending commenced as soon as he “came of age” (i.e. turned 15). SZSS’s criminal records consists of a number of offences recorded (whether entered as convictions or not), spanning a period of 12 years (from 2005 to 2017) with the most serious being offences of armed robbery on two separate occasions in 2008 and 2010 and a further serious offence more recently in 2016 of driving under the influence of ice in an unregistered car, with a woman and 11-month old baby unrestrained in the back seat, and other offences of possessing ice, “ghb” and other unnamed prohibited substances.
For a number of years of SZSS’s adult life, he was gainfully employed in Australia, albeit on an intermittent and casual basis. The Tribunal affords recognition for the work in Australia that SZSS has performed. The Tribunal accepts this evidence and considers that paragraph 14.2(1)(a)(ii) of Direction no.65 applies in this application.
The Tribunal concludes that the consideration under paragraph 14.2 of Direction no.65 weighs in favour of revocation of SZSS’s visa cancellation, on account of length of time he has spent living in Australia, the contribution he has made through his years of gainful employment in Australia and his significant ties with Father, Eldest Son, Youngest Son (to a lesser extent because he has not yet met him or confirmed he is the father of this child), extensive family and friends, all presently and permanently residing in Australia.
Impact on Australian business interests

SZSS gave evidence that he was not involved directly or indirectly in any business undertaking in Australia. This factor is not a relevant consideration in this application.
Impact on victims
Paragraph 14.4 of Direction no.65 provides that the Tribunal should consider the impact of a decision not to revoke the cancellation decision on members of the Australian community, including victims on the non-citizen’s criminal behaviour and the family members of those victims. The Tribunal considers that it is self-evident that the reference to “not” in this paragraph before the phrase “to revoke” is a typographical error and the assessment that the Minister intended is that the decision-maker consider the impact of a decision to revoke the cancellation decision on members of the Australia community including victims and their family members. If the Tribunal is wrong about this, the impact on members of the Australia community of a decision not to revoke the cancellation decision is that there will be none, as SZSS will not be released into the Australian community.
The Tribunal has found that there is a medium level risk that SZSS will re-offend. If he is released back into the Australian community, members of the Australian community who come into contact with SZSS while he is using ice may be gravely impacted by his inability to regulate his emotions and to control his risk-taking behaviour while his under the influence of drugs. The Tribunal is aware of the impact that SZSS has had on others in the past, by putting them at grave risk and by instilling in them fear of personal harm to them and their family.
The Tribunal considers that this factor weighs against revoking the decision to cancel SZSS’s visa. If the Tribunal is wrong about its interpretation of this part of the Direction, by taking into account the typographic error referred to in paragraph [226], based on all other primary and other considerations (i.e. putting this particular consideration aside), the Tribunal would nevertheless have affirmed the decision under review.
Extent of impediments if returned to New Zealand
Paragraph 14.5 of Direction no.65 requires the Tribunal to consider the extent of any impediments that the Applicant may face in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country). The Tribunal must take into account the Applicant’s age and health, whether there are substantial language or cultural barriers and any social, medical and/or economic support available to him in the home country.
No language barrier or cultural differences would apply with respect to SZSS settling into New Zealand. SZSS said he had a reasonable knowledge of Maori traditions and culture. SZSS has spent most of his life in Australia having arrived here at the age of nine. However, there has always remained some connection with New Zealand. SZSS has travelled back to New Zealand on a New Zealand passport, on the following six occasions:
(a)26 July 1998 (returned to Australia 13 December 1998);
(b)9 July 1999 (returned to Australia on 17 July 1999);
(c)21 December 1999 (returned to Australia on 14 February 2000);
(d)24 September 2004 (returned to Australia on 20 October 2004);
(e)9 January 2009 (returned to Australia on 7 February 2009);
(f)17 December 2013 (returned to Australia on 9 January 2014).
The Tribunal is satisfied that SZSS is familiar with both the Maori and non-Maori cultural aspects present in communities living in New Zealand.
On the PCF, SZSS states:
I would be isolated with no family support, and be surrounded by negative culture, impacted by gangs and weapons.
The Tribunal referred to its finding above in relation to the concern SZSS’s has about gangs in New Zealand.
In terms of the general suggestion that it is harder to make a go of things in New Zealand, while the Tribunal suspects that this may be right, it notes that New Zealand and Australia have broadly similar legal and social security systems.
Of importance, the Tribunal notes the requirement under Direction no.65 for it to consider the extent of any impediment that SZSS may face in establishing himself and maintain basic living standards (in the context of what is generally available to other citizens in New Zealand). For this reason, the Tribunal is reluctant to draw comparisons between New Zealand and Australia and instead, it considers that it is required to assess whether SZSS faces any impediment establishing himself and maintaining a basic standard of living in New Zealand noting that if he is unable to find work, he will receive unemployment benefits, that are available to other New Zealand citizens who are unemployed. The Tribunal does not consider SZSS will face any particular impediment in this regard, relative to other New Zealand citizens.
The Tribunal acknowledges that SZSS’s search for work in New Zealand will be challenging given that he has a significant criminal record to his name, including a number of convictions involving theft, possession of drugs and dishonesty. SZSS will face those same challenges if he remains in Australia.
Despite this, the Tribunal is satisfied that SZSS has reasonable prospects of finding paid employment in New Zealand for the following reasons:
(a)there was no evidence before the Tribunal to indicate that the employment rate in New Zealand was a barrier to SZSS finding employment in New Zealand. To the contrary, New Zealand’s unemployment rate was estimated at 4.9 per cent in 2017;[55]
(b)SZSS is a reasonably young person presently in good health apart from periodically suffering eczema and gout. At the hearing, SZSS said his gout flared up from time to time and when it does, he usually has it for a couple of months.
(c)on the PCF, SZSS reports he had not been diagnosed with any medical or psychological conditions, apart from gout.[56] He gave evidence at the hearing that he was attending gym daily while in prison and that he had not taken drugs for the last 12 months. If SZSS successfully maintains these positive aspects of his life, he will remain in an optimal mind set and physical condition to search for and gain employment in New Zealand;
(d)SZSS has had previous work experience in a number of occupations, including in shop fitting and carpentry. He has completed Year 12 at secondary school and the additional vocational certificates while in Australia as referred to above; and
(e)SZSS’s represented himself in this application and demonstrated that he has good interpersonal skills. This should assist SZSS in finding work and establishing new friends and networks in New Zealand.
[55] Refer
[56] Refer G-Documents G7/51.
If SZSS goes back to New Zealand he has the opportunity to and intends to live with his biological mother and sister who reside in a sizable city. Given SZSS’s family contacts, the Tribunal considers that SZSS will have reasonable prospects of finding employment when he returns, which will assist him to settle in New Zealand, provided he does not relapse and re-offend.
SZSS has consistently reported no history of mental health issues. When Father was asked why he thought SZSS committed the 2008 robbery, his response was, “because he was depressed”. The IMHS clinical notes reveal that SZSS was experiencing insomnia while he was in detention, requiring medication, but otherwise they did not reveal a history of mental health issues.
In terms of SZSS establishing initial basic accommodation, social supports and community supports, the Tribunal has also taken into account the support that is likely to be provided by the Corrections Officer if a supervision order is made with respect to SZSS upon his return to New Zealand under the Returning Offenders (Management and Informaiton) Act 2015 (NZ).
The Tribunal has taken into account all of the matters referred to in paragraphs [230] to [240] and concludes that the other consideration under paragraph 14.5 of Direction no.65 does not weigh in favour of revoking the cancellation of the SZSS’s visa. The Tribunal recognises that SZSS will face some challenges, but is not satisfied that he will face significant impediments to establishing himself and maintaining basic living standards in New Zealand (in the context of what is generally available to other New Zealand citizens).
CONCLUSION
Regrettably, SZSS has struggled for most of his adult life to reach his goals. Unfortunately, SZSS has not succeeded, until recently, to abstain from his entrenched habit of significant drug use and detrimental criminal behaviour. When opportunities were provided to SZSS in his life to make changes and rebuild a new life for himself and his sons, sadly, they were not taken up or importantly, put into practice by him on a sustainable basis.
The Tribunal has not reached its decision in this application without considerable deliberation, given that SZSS has an Australian son (and reportedly, two) presently living in Australia; he arrived when he was nine years of age; he has been schooled in Australia; he has spent years working in Australia and made a contribution in that regard and has spent 20 years living in Australia (being two-thirds of his life). The Tribunal is also mindful of the impacts that this decision will have on Eldest Son, to a lesser extent, Younger Son, and Father and for this reason, the decision of the Tribunal has been reached with great reluctance. The Tribunal acknowledges the emotional impact it will have on SZSS to be forced to live in a country in which his sons are not living. The Tribunal has taken into account that his Eldest Son may visit, but those visits will be limited to once a year.
The Tribunal does not find that SZSS will suffer any harm likely to give rise to international refoulement obligations.
The Tribunal is mindful that if SZSS is deported, he will be without the emotional support of Father, except when he travels to New Zealand to visit him, and also his other Australian-based family members and friends. SZSS will be starting from scratch upon his return to New Zealand. He has experienced problems with drug addiction which also makes SZSS particularly vulnerable should he relapse. The Tribunal accepts that this will present initial challenges for SZSS to establish himself in New Zealand. However, New Zealand is a first world country with a healthy economy in relative terms, to other parts of the world. It has a welfare system not dissimilar to Australia, although not quite as beneficial.[57]
[57] For instance, unemployment benefits in New Zealand are not paid at a rate as high as they are available for Australian residents.
The Tribunal is satisfied that SZSS does not face any significant impediments, relative to other citizens in New Zealand, to use the Government supports and benefits available to him in New Zealand. SZSS is in good health and has a good range of skills and work experience which the Tribunal considers will assist him to find work in New Zealand, if he manages to remain drug-free. His experience with having worked in the field of capentary is particularly significant and should stand SZSS in good stead to find work in New Zealand, as will has passion to return to study and to pursue work as a youth worker. The Tribunal offers SZSS every encouragement in that regard.
SZSS considers that he has turned a corner, both with respect to his drug addiction and also that he will no longer offend. The Tribunal hopes this proves to be correct. While SZSS has shown in recent times a successful and commendable withdrawal from ice and alcohol while in prison/detention, it is still untested as to whether he will be able to maintain this in the absence of living in a structured setting. SZSS has experienced a relapse previously following long period of abstinence from drugs and alcohol. Hopefully, it will be different this time, as SZSS contends.
However, for now, there was insufficient evidence before the Tribunal to be satisfied that SZSS will not relapse and will avoid re-offending upon being released into the community. The CCO assessment in recent years assessed his level of risk as high. Despite the efforts at rehabilitating SZSS, he did not respond sufficiently to the rehabilitation he underwent. The Tribunal is satisfied that there is a medium level risk of SZSS re-offending.
The Tribunal considers the offences committed by him were serious. They resulted in SZSS serving two terms of imprisonment. They exposed others in the Australian community to a grave risk of physical and psychological harm. The Tribunal notes SZSS’s evidence that he “did care” about what he had done and the potential impact of his actions; however the Tribunal was concerned by SZSS comment that, in his view at least, he did not hurt anyone. SZSS accepted that while he did not ultimately physically hurt anyone on those occasions, he accepted that his victims of the armed robberies were fearful of their safety. He admitted to hearing the wife of shop owner screaming at her husband during the incident in 2008. He also accepted a proposition put to him at the hearing that his actions, including the incident driving under the influence of ice, in an unregistered car, without a full licence, with a woman and unrestrained 11-month old baby in the back seat, could have ended differently and might have harmed someone.
The Tribunal is satisfied that the Australian community would expect to be protected from such criminal activity, particularly in consideration that SZSS has been afforded past opportunities for reform by having been imprisoned previously and assisted through CCO’s.
The Tribunal recognises that in the event that SZSS is no longer in the same country as Eldest Son and Father, it is likely to have a detrimental impact on all of them. However, Father has indicated he would visit SZSS in New Zealand and that SZSS will be welcome to live with his biological mother and sister. When Father was asked how he knew that SZSS would be welcome to live with them, he said that he had spoken to SZSS’s biological mother to confirm this. When asked at the hearing, Father said that SZSS and his biological sister got along okay. On SZSS’s evidence, Eldest Son would be able to visit him once a year.
Despite SZSS’s significant ties to Australia which weigh in favour of revoking the cancellation decision, the Tribunal has determined that there is a medium level risk of SZSS re-offending and for this reason, the primary considerations of protection of the Australian community from criminal or other serious conduct and the expectations of the Australian community outweigh, the other primary consideration of the best interests of minor children and the other “other considerations” in favour of revoking the visa cancellation.
In light of the findings made as set out in these Reasons for Decision, the Tribunal concludes that there is not another reason why SZSS’s visa cancellation should be revoked.
For the reasons set out above, the Tribunal affirms the decision of the delegate of the Minister not to revoke the cancellation of SZSS’s visa.

I certify that the preceding two hundred and fifty four (254) paragraphs are a true copy of the reasons for the decision herein of Member K Parker.

[sgd]........................................................................
Associate
Dated: 30 October 2018

Dates of hearing: 18, 24 & 29 October 2018

Applicant: Self-represented

Advocate for the Respondent: Ms Ashleigh Allan

Solicitors for the Respondent: Sparke Helmore

Action Strategy 2015 -

[2018] AATA 4079

30 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Standing

Remedies

Dates of hearing:	18, 24 & 29 October 2018
Applicant:	Self-represented
Advocate for the Respondent:	Ms Ashleigh Allan
Solicitors for the Respondent:	Sparke Helmore