Tapara and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 3808

Tapara and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3808 (30 September 2020)
Division:GENERAL DIVISION
File Number(s): 2019/8033
Re:Paul Tapara
APPLICANT

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

DECISION
Tribunal:Senior Member K Millar
Date:30 September 2020
Place:Adelaide

The decision under review is affirmed.
...........[sgnd].............................................................
Senior Member K Millar
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Ketjan v Assistant Minister for Immigration and Border Protection [2019] FCAFC 207 at [39]
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SZFYW v Minister for Immigration and Citizenship [2008] FCA 1259
SECONDARY MATERIALS
Direction No. 79, Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member K Millar
30 September 2020
INTRODUCTION

Mr Tapara is a citizen of New Zealand. He was born in 1962 and came to Australia in February 1979 at 17 years of age to escape a violent father. His mother and siblings followed at a later time.
Mr Tapara has committed a number of offences in Australia, commencing with larceny as a servant and progressing to drug offences. However, by far the greater number of offences relate to him driving when unlicensed. He has been declared a habitual offender twice, and most recently was imprisoned for 9 months for further driving offences. He is currently disqualified from driving until 2049.
During his most recent period of imprisonment, his visa was cancelled by a delegate of the Minister on the basis that he did not pass the character test. Mr Tapara does not dispute he does not pass the character test but submits the mandatory cancellation of his visa should be revoked.
This matter has been before the Tribunal (differently constituted) on a previous occasion and was remitted for further consideration with the consent of the Minister on the basis that the best interests of two children referred to by Mr Tapara had not been considered. The Tribunal has proceeded to review the matter afresh on the circumstances as they are at the time of its decision.[1]
[1] SZFYW v Minister for Immigration and Citizenship [2008] FCA 1259.
OFFENDING AND IMMIGRATION HISTORY
Mr Tapara’s offending history is summarised in the Respondent’s Statement of Facts, Issues and Contentions and includes:
(a)21 driving and vehicle related offences
(b)27 drug and prohibited substance offences
(c)4 offences for resisting / hindering / assaulting police
(d)2 offences relating to having a knife in a public place, and
(e)1 conviction for larceny as a servant.
Mr Tapara began his offending 5 months after arriving in Australia. On 3 July 1979, he was fined for wilfully damaged property and placed on a bond for attempted theft from a motor vehicle.
His first driving while unlicensed offence occurred on 3 November 1981. Two months later, on 15 January 1982, he was again apprehended driving without a licence. In 1983 he was disqualified from driving for 4 months and fined for driving with low range concentration of alcohol. There followed in 1986 a series of driving while unlicensed offences and one negligent driving offence.
On 7 December 1982, Mr Tapara was charged with and subsequently convicted of larceny as a servant and was sentenced to imprisonment for 3 years.
Following this conviction, on 21 September 1983, he was interviewed by an officer of the then Department of Immigration and Ethnic Affairs and it was explained that as a result of his conviction he had rendered himself liable for deportation.
From 1991, Mr Tapara continued to incur driving infringements including driving unlicensed, not wearing a seatbelt and disobeying traffic lights.
On 12 December 1996, Mr Tapara was charged with possession of a prohibited drug and fined $500, and approximately two weeks later he was charged with possession of a prohibited substance and failure to appear and was fined again.
Between 1997 and 1998, Mr Tapara was charged with four counts of supplying a prohibited drug. On one count he was sentenced to a recognisance, which he breached on 24 August 1998, and was subsequently sentenced to a period of detention for 3 months commencing 11 November 1998. In 1997 Mr Tapara received a fine and default cancellation of unrestricted licence.
On 4 December 1997, Mr Tapara was charged with resisting, hindering and assaulting police, and was convicted and fined for these offences.
In 1999 Mr Tapara committed several serious drug offences for which he was convicted in March 2001. He was convicted of ongoing supply of a prohibited drug and sentenced to 4 years and 6 months imprisonment with a non-parole period of 2 years and 3 months. This took into account five matters occurring between August and December 1999 which included supplying cocaine, offering to supply cocaine and possessing cannabis. The sentencing Judge observed that Mr Tapara’s role was “more than simply a runner”, being a messenger between the runners and the organiser.[2] Mr Tapara states that his marriage broke down at this time and he did not cope well with the breakdown.
[2] G2/101.
After his licence was reissued in 2002, Mr Tapara was fined twice for speeding, once in excess of 15 km per hour in 2002 and the other, in 2003, for exceeding the speed limit by over 30 km per hour.
In March 2004, Mr Tapara appeared in the Hornsby Court for driving an uninsured, unlicensed vehicle and driving while suspended. Approximately two weeks later he was again, apprehended driving an uninsured and unregistered vehicle and for driving while suspended. As a result of these offences, Mr Tapara was issued with a habitual offence warning letter and sentenced to 9 months home detention. During 2004, Mr Tapara was also convicted and fined for common assault.
Mr Tapara regained his licence in 2007 and in 2008 was again detected speeding. In 2009 he was detected speeding twice and using a hand-held mobile while driving. In 2009, Mr Tapara was to be issued with a demerit point suspension of his licence. The suspension was not implemented, and he was issued with good behaviour conditions to apply from 29 July 2009 until 13 February 2010. Twelve days after the good behaviour condition was issued, Mr Tapara committed a further speeding offence exceeding the limit by more than 20 km per hour. This was then followed by another speeding offence in January 2010. Mr Tapara was issued with a demerit point suspension of his licence with good behaviour to commence from 13 February 2010 until 12 August 2010.
In 2010 and 2011, Mr Tapara continued to offend and was sentenced for possessing a prohibited drug (four charges) and custody of a knife in a public place. He was placed on a bond.
In 2011, Mr Tapara was fined for speeding six times and in 2012 his licence was suspended until 6 June 2013. Between 2011 and 2013, Mr Tapara continued to commit traffic related offences including use of an unregistered motor vehicle, use of an uninsured motor vehicle, driving without or unauthorised/obscured/illegal/misleading/altered or incorrectly fixed number plate and driving under the influence of alcohol.
In 2013, over an eight-week period, Mr Tapara was caught driving while suspended on three separate occasions. Mr Tapara was sentenced for these offences, together with drug offences. He was sentenced to a combination of fines, bonds and sentences of imprisonment, which were suspended. For two of the driving while disqualified offences, he was sentenced to 8 months’ imprisonment. For the third he was sentenced to 12 months’ imprisonment. The sentencing remarks of Magistrate Ryan in the Local Court Downing Centre highlight Mr Tapara’s recidivist behaviour:
Driving while suspended, as I said, there are five matters, two occurring on the same day, on 11 February 2013, another one on 8 March, another on 12 April and 24 April. These are matters that carry gaol terms and they are not trivial matters by any stretch, and clearly, during that period of time, you were of the mind that you were going to drive no matter what and that is what you did and you broke the law repeatedly.[3]
[3] G4/124.
On 15 May 2013, an officer of the Department of Immigration and Citizenship wrote to Mr Tapara seeking information to determine if formal consideration should be given to cancelling his visa.
In 2014, he was twice declared a habitual offender resulting in a cumulative driving disqualification period of 10 years expiring in 2027.
On 16 October 2015, he was charged with, and subsequently convicted of, two counts of possessing a prohibited drug for which he was sentenced to one month of imprisonment.
On 3 January 2016, Mr Tapara was charged with driving a motor vehicle while disqualified. The day before, on 2 January 2016, he had been charged with driving while disqualified and possessing a prohibited drug.
He was sentenced to 9 months’ imprisonment on each count to be served concurrently with a non-parole period of 6 months. After this offence, he was twice declared a habitual offender and disqualified from driving for a total of 10 years, making him eligible for a licence in November 2049.[4]
[4] G24/393.
On 27 June 2016, his visa was cancelled under s 501(3A) of the Migration Act 1958 (“the Act”) because he had a substantial criminal record. The mandatory cancellation of his visa was revoked on 20 September 2016.
In January 2017, he was charged with possession of a prohibited drug (cocaine) and fined.
On 1 October 2018, Mr Tapara was charged with two counts of driving while disqualified and exceeding the speed limit by greater than 45 km per hour. On 23 January 2019, he was sentenced to 9 months’ imprisonment on each count to be served concurrently with a non-parole period of 6 months. Magistrate Williams described his record as “one of the most appalling records I think I have ever seen”,[5] and stated that he is a person who really should not be on the roads at all. The nature of the offences on his record was described as showing an absolute and total disregard for anybody else on the roadway. Magistrate Williams said:
… this is a person who just snubs his nose at the court of every single opportunity, snubs his nose at the community at every opportunity. He puts people in danger just because he wants to go to the shops, that is the level of interest in public safety.
My view is this is a matter which must carry a gaol term. He has shown clearly that he will not remove himself from the roads. My job is to protect the community, one very effective way of protecting the communities to remove him from society so that he cannot drive a motor vehicle and therefore put the public at risk. …
This is a man who needs to know that if he keeps on getting back behind the wheel of a car he’s going to keep on going to gaol. The parliament has sought fit to impose terms of imprisonment for people who keep driving whilst disqualified, and I cannot think of a lawsuit appropriate matter for a gaol term to be imposed for this sort of offence.
[5] G7/122.
His visa was cancelled under s 501(3A) of the Act on 20 February 2019.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act states the Minister must cancel a visa that has been granted to a person if satisfied the person does not pass the character test because he or she has a substantial criminal record, and 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.
The decision to cancel the visa can be revoked if the Minister, or the Tribunal in the place of the Minister, is satisfied either that the person passes the character test, or there is another reason why the original decision should be revoked.[6]
[6] Section 501CA(4) of the Act.
In looking at whether there is another reason to revoke the cancellation of the visa, the Tribunal is bound by written directions given by the Minister.[7]
[7] Under s 499 of the Act, the Minister may give written directions that are consistent with the Act or Regulations about the exercise of powers under the Act. These directions bind this Tribunal (s 499(2A) of the Act).
The Minister has given written directions about the exercise of the power to revoke the cancellation of the visa in Direction No. 79, Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”).
The matters to be decided in this case are whether Mr Tapara does not pass the character test; and if so, whether there is another reason the decision to cancel the visa should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
A person does not pass the character test if he or she has a “substantial criminal record”.[8] According to s 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
[8] Section 501(6)(a) of the Act.
Mr Tapara was sentenced on 22 July 1983 to a term of imprisonment of 3 years. In 2001 he was sentenced to a term of imprisonment of 4 years and 6 months, and on 26 November 2014 to a further term of 12 months.
More recently a term of 9 months’ imprisonment was imposed on 23 January 2019. He has been sentenced to a number of other shorter terms, generally to be served concurrently.
There is no requirement that the sentence of imprisonment for this visa cancellation is the same sentence that gave rise to the person having a “substantial criminal record.”[9]
[9] Ketjan v Assistant Minister for Immigration and Border Protection [2019] FCAFC 207 at [39].
As Mr Tapara has been sentenced to terms exceeding 12 months’ imprisonment, he does not pass the character test.
The remaining question is whether there is another reason the decision to cancel the visa should be revoked.
IS THERE ANOTHER REASON THE CANCELLATION SHOULD BE REVOKED?
In considering whether the cancellation of Mr Tapara’s visa should be revoked, the Tribunal is required to apply the Direction.
The Direction specifies that a decision-maker, informed by the principles in Paragraph 6.3, must take into account the considerations in Part C of the Direction in determining whether the mandatory cancellation of a non-citizen’s visa should be revoked.[10]
[10] Paragraph 7(1)(b) of the Direction.
Principles that inform the decision-maker
Paragraph 6.3 of the Direction sets out a number of principles that inform the decision-maker. They are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
While these are principles that guide decision making rather than being requirements, the matters that apply particularly to Mr Tapara are that:
·     There is an expectation that he will be law abiding and respect important institutions such as Australia’s law enforcement framework;
·     He has lived in Australia for a period of 41 years, and arrived in Australia at 17 years of age, and a higher level of tolerance may be afforded to him;
·     He relies on a work history of 27 years showing a positive contribution to the Australian community, as well as his immediate family in Australia including his minor nephew and the minor children of a close friend as considerations in the context of whether his visa should be cancelled.
The Primary and Other Considerations
Paragraph 8 of the Direction provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
Paragraph 13(2) in Part C of the Direction provides the three Primary Considerations being:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
The Other Considerations which must be taken into account where relevant are provided in a non-exhaustive list in Paragraph 14(1) of the Direction; these considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
In Suleiman v Minister for Immigration and Border Protection[11] Colvin J, in applying the identical condition to Paragraph 8(3) from Direction No. 65, stated that while generally Primary Considerations should be given greater weight, the Direction:
requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[12]
[11] [2018] FCA 594.
[12] At [23].

An evaluation of the factors occurs in the context of the circumstances of the individual case, and while the Primary Considerations may outweigh the Other Considerations in accordance with Paragraph 8(3), Other Considerations can outweigh the Primary Consideration in the particular circumstances of the case.
THE PRIMARY CONSIDERATIONS
Protection of the Australian community
Paragraph 13.1 of the Direction sets out the first of the Primary Considerations the Tribunal should have regard to, and provides:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
a)The nature and the seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct to date
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date.
Of these factors, the matters that relate to violence or sexual offences, offences against women and children or vulnerable members of the community, providing false or misleading information to the Department, and crimes committed while in immigration detention do not apply to Mr Tapara’s circumstances.
Of the remaining factors he has been convicted, albeit a considerable period of time ago, of crimes against government officials in the performance of their duties, with the offences of hinder, resist and assault police in 1997.
The sentences imposed by the Court on Mr Tapara are significant and show the gravity of his offending. The sentences of imprisonment for larceny (3 years) and supply of prohibited drugs (4 years and 6 months) are substantial. He has driven while disqualified on so many occasions that he was sentenced to terms of imprisonment on more than one occasion.
When sentenced in November 2019 for driving while disqualified, Magistrate Williams described Mr Tapara’s record as one of the most appalling he had seen, and that the nature of the offences on his record showed abject disregard for anybody else on the roadway.[13] He was sentenced to a term of imprisonment of 9 months, with a 6 month non-parole period.
[13] G7/122.
Mr Tapara submits there is no increase in seriousness as the offences were “all the same thing”. This misses the point that he continues to offend despite increasing fines, home detention, suspended sentences and terms of imprisonment being imposed. It also overlooks the escalation in his attempts to avoid detection, with Magistrate Williams describing him as taking off at speed and accelerating harshly when the police were behind him, with his speed estimated at 105–110 km per hour in a 50 km per hour residential and school zone. Mr Tapara denied trying to evade police, but neither the sentencing Judge nor this Tribunal accept this was the case.
Mr Tapara has offended frequently, despite there being some periods where he did not offend. He has committed approximately 55 offences since arriving in Australia.
The sentences imposed, the disregard for the Courts, and the cumulative effect of approximately 16 offences of driving while disqualified or while his licence was suspended weigh heavily against Mr Tapara and in favour of not revoking the cancellation of his visa.
Also weighing heavily against Mr Tapara is that he was previously interviewed by Immigration about his criminal offending on 21 September 1983 as his offending rendered him liable for deportation.[14] His comments were again sought about potential cancellation of his visa on 15 May 2013.[15] His visa was previously cancelled on 27 June 2016 and he spent a period of time in immigration detention.[16] This cancellation was revoked on 20 September 2016.
[14] G12/173.
[15] G12/176.
[16] G23/386.
Mr Tapara has been on notice on three occasions that his criminal conduct may lead to his visa being cancelled. The letter revoking the cancellation of his visa in 2016 states in bold type:
Please note: the decision to revoke the original decision does not mean that you cannot be reconsidered for cancellation on character grounds in the future in the event of further criminal offending by you.
In his submission, Mr Tapara argues that the cancellation of his visa was revoked as the offences were “historical”. It appears this may refer to a previous suspended sentence, which was then imposed. Regardless of the basis for the cancellation of his visa, or the revocation of this cancellation, Mr Tapara was on notice that further offending could result in his visa being cancelled.
Notwithstanding these warnings and a previous cancellation of his visa, Mr Tapara has continued to offend.
The risk to the Australian community
Paragraph 13.1.2 of the Direction provides factors to be considered in determining the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. It states:
(1) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Mr Tapara has been convicted of larceny, various drug offences, repeatedly driving while disqualified and speeding in a residential area. These activities all entail harm to the Australian community including the harm involved in drug use and distribution and the risk to others on the road from Mr Tapara’s conduct. There is also a strong element of disregard for orders of the Court in relation to his many driving offences as he continues to drive despite being disqualified. As such, the nature of the risk to the Australian community includes a lack of respect for the rule of law and orders of the Court.
In looking at the likelihood of reoffending, Mr Tapara was declared to be a habitual offender on 27 November 2014, 7 May 2015 and 4 January 2016.[17] Mr Tapara states on his most recent appeal that he was advised that the habitual offender legislation has been repealed, and he can seek reinstatement of his licence, which is currently disqualified until 2049 if he does not offend for 2 years. He said this is an incentive for a disqualified driver not to reoffend. He said he has 4 months remaining before he can go before the Court and submit his case as he wants to get his licence back and drive again.
[17] G24/393 and 394.
Mr Tapara said his understanding is that if he does not offend in a 2-year period, he can seek reinstatement of his driver’s licence and this would provide motivation not to reoffend by driving while unlicensed. He did not think it relevant to reinstatement of his licence that he has been in prison or in immigration detention for the period in which he had not reoffended. He continues to discuss returning to driving, and his record shows he is unable to resist the urge to drive despite his many convictions. Mr Tapara does not appear to see the very clear nexus between his offending and his being in detention. As such, there is little evidence before me indicating he will not continue to offend by driving if released into the community.
More recently, his attempt to evade detection when driving by exceeding the speed limit in a residential area by more than 45 km per hour has led to an increased risk to the community. This level of speed in a residential zone increases the risk to the community as the potential for serious injury or death for people who may be on the street is high if he is speeding to this extent.
Mr Tapara said he cannot afford to be in front of the court again at his age and over the last 6 years he has repeated stupid mistakes and he “can’t work it out himself”, but now he realises he has too much to lose. Cancellation of his visa, fines, suspension of his licence, suspended sentences and terms of imprisonment have proved ineffective to deter Mr Tapara in the past, and insofar as this predicts his future behaviour, the Tribunal is not satisfied there is a change to Mr Tapara to the extent that he will comply with orders of the Court and not drive, particularly if his hope to have his licence reinstated, which seems unlikely, is not realised.
The sentencing assessment report of 21 January 2019 states he is a medium risk of reoffending. In the context of the offences being considered of driving a motor vehicle more than 45 km over the speed limit and driving while disqualified, I take this risk assessment to be for this type of offending.
Mr Tapara has had a significant drug problem in the past. He commenced using drugs when he was 34 years of age. He said at this time his marriage had broken down and he had left the job he had held for 14 years. In 2013, Mr Tapara entered a detoxification program at St Vincent’s Hospital and completed a Recovery Phase Level 1 course with the Salvation Army Bridge Program at the Dooralong Transformation Centre prior to his sentencing for drug offences.[18] He says he completed 10 months of random drug testing. While on parole he tested positive for amphetamines and methamphetamines in May, July and August 2017.[19]
[18] G7/124.
[19] G23/368.
Approximately 4 years after his release from prison his partner committed suicide, and he was first on the scene. This understandably caused significant distress and resulted in a later diagnosis of major depression and post-traumatic stress disorder. When he was diagnosed with PTSD, he saw a psychiatrist and was commenced on antidepressants but stopped taking them because it did not feel right. He said counselling has helped and over time his condition has improved. He still has the contacts to call if he needs support for this condition. Mr Tapara returned to work immediately after his partner’s death and said he worked long hours in an attempt to deal with his mental distress. After Mr Tapara returned to work, he ended up tearing the rotator cuffs in both shoulders. He was on workers compensation for 2 years before his employment was terminated. He has not worked since and was on disability support pension.
He completed an EQUIPS Foundation program in April 2017 while subject to supervision.
Mr Tapara returned to drug use, and as he had breached parole by testing positive for amphetamines and methamphetamines, he was directed to enter a drug detoxification program.[20] He was admitted for detoxification for his use of the drug ice at Royal North Shore Hospital in September 2017.[21]
[20] G23/383, 368–369.
[21] G22/293–297.
He attended the Hornsby Hospital Drug, Alcohol & Gambling service in 2017 for the purpose of methamphetamine abstinence treatment.[22]
[22] G22/279.
Mr Tapara refers to a Kedesh Rehabilitation program which was 12 weeks’ duration, however he was dismissed one week from completion and says this was because he had a mobile phone. Before being imprisoned on the last occasion, Mr Tapara said he was one week away from completing a Certificate III in Business and had planned to do a Certificate IV in Commerce.
Despite periods of abstinence following treatment, Mr Tapara has returned to drug use at times, including when he was on parole for other offences. In the sentencing assessment report of 2 January 2019, he is reported to have acknowledged a need to address longstanding drug issues, but also to have been drug free for a period of 4 months.[23] Notes from the International Health and Medical Services from May and June 2020[24] state he denies drug use or cravings and is motivated to stay clean. His urine drug screen was negative for all substances while in immigration detention.
[23] G23/382.
[24] G25/416.
The Tribunal finds the likelihood of him engaging in criminal or other serious conduct due to drug use is reduced, although is still a real risk. His likelihood of further criminal conduct relating to driving is medium to high given his previous history.
Having considered the nature and seriousness of the conduct and the risk to the Australian community should Mr Tapara commit further offences or engage in other serious conduct, this factor weighs heavily against Mr Tapara and in favour of not revoking the cancellation of his visa.
The best interests of minor children in Australia
Paragraph 13.2 of the Direction sets out the next Primary Consideration the Tribunal should have regard to and provides:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Mr Tapara identifies his nephew JT and daughters of his friend, AY and TY, as minor children whose interests may be affected if his visa remains cancelled.
Mr Tapara’s younger brother has two children; JT and BT. JT is 15 years of age and BT is now an adult. JT lives with his mother in Queensland and travels to stay with Mr Tapara’s brother in school holidays. Mr Tapara describes their relationship as a normal uncle/nephew relationship. Mr Tapara says when his nephew is with his brother, they will travel together to see JT’s grandmother and aunt, and if his brother is working, he will take JT to visit on weekends. He takes his nephew fishing and to the football.
This is a non-parental relationship and his nephew will turn 18 in three years. JT is of an age where he can maintain contact with Mr Tapara in other ways such as by phone and other electronic means. JT has both his mother and father performing a parental role.
The best interests of JT are for Mr Tapara to remain in Australia to retain the connection with him while he visits his father.
Mr Tapara also identifies the daughters of his friend, AY and TY, as being affected by a decision to cancel his visa. The mother of AY and TY provided a statement and gave oral evidence to the Tribunal. AY is now 16 years old and TY is 15 years old.
Mr Tapara and their mother have a common bond due to shared emotional trauma as she lost her younger sister to suicide. He has been involved in the lives of AY and TY for over seven years, since they were 7 and 8 years old. He provided emotional support to their mother and assisted with babysitting if their father did not show up and their mother had to work. He says this was quite frequent in the past, but the last time he had looked after them is now approximately 4 years ago. He acknowledges they are almost too old to babysit. He last saw AY and TY at Christmas in 2018. He spoke to AY on her birthday in January as she happened to be there when he called her mother. He had difficulty remembering either child’s birthdate.
AY and TY’s mother said she is close to Mr Tapara and regards him as a brother or a best mate. Her children have always had him around and he babysat when she had to go to work. She described his relationship with AY and TY as like an uncle who had never let her down with the children. As AY and TY have become older, she generally visits Mr Tapara without them as they are teenagers and are doing their own thing. She estimates that he last babysat two and a half to three years ago. She has now re-partnered and describes her current partner as a good dad.
AY and TY’s biological father lives not far from them, and she describes his relationship with the children as on and off. However, since he has re-partnered and has other children, he has had more involvement with AY and TY, and she says he is now a better father but is busy with his other children.
Mr Tapara did not identify a difference in his relationship with AY and his relationship with TY. AY and TY are approaching 18 years of age, and the period in which Mr Tapara can play a positive role in the future is limited. It is not suggested by Mr Tapara or AY and TY’s mother that he plays a parental role with either child, with his role described as like an uncle. Their biological father has played more of a role in their lives in recent times. AY and TY’s mother describes her current partner as a good dad.
None of the children visited Mr Tapara while he was in prison or immigration detention, and there is no information before the Tribunal to show that his absence has had a significant impact on JT, AY or TY. There is no information to suggest he could not maintain contact with them in other ways should he chose to do so.
It is in the best interests of Mr Tapara, JT, AY and TY that he remains in Australia. He has a longstanding relationship with each of these children, and an ongoing involvement in their lives, which is reducing in the case of AY and TY as they become older. He remains involved when he can in the life of JT.
This factor weighs in Mr Tapara’s favour towards revoking the cancellation of his visa, however to a limited extent as he does not play a parental role for any of the minor children affected by this decision.
Expectations of the Australian community
Paragraph 13.3(1) of the Direction sets out the third of the Primary Considerations and provides:
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.

Paragraph 6.3(5) and (7) of the Direction provide:
(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 for only 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.
The equivalent provision in relation to revoking the mandatory cancellation of a visa has been considered by the Full Court of the Federal Court in FYBR v Minister for Home Affairs.[25] Justice Charlesworth clarifies this provision as meaning that “it is not for the decision maker to make his or her own assessment of the community expectations” and that this provision “concerns what the government has deemed the community’s expectation to be”.[26] Justice Stewart agreed that the effect of this provision is to deem what community expectations are, and that it is not for the decision maker to decide what community expectations are.
[25] [2019] FCAFC 185.
[26] At [67] and [68].
Mr Tapara submits insufficient weight has been given to the length of time he has been in Australia and the periods he did not offend. He states the community would appreciate his past efforts to minimise his offending and expect him to re-engage with local services if he relapsed. He also states the community would expect him to reapply to have his licence reinstated and in the meantime obey Court orders and in the meantime complete traffic offender programs.
The Tribunal acknowledges Mr Tapara has been in Australia for approximately 41 years, and his length of residence warrants a careful consideration of his circumstances. The Direction sets out that there is a greater level of tolerance for people who have been in Australia for a long period. Mr Tapara has been extended a great deal of tolerance, having had the cancellation of his visa considered in 1983, and a mandatory cancellation of his visa revoked in 2016. He has been subject to a number of fines, licence suspensions, home detention and suspended sentences before being imprisoned. There comes a time, however, when this tolerance is exhausted.
Mr Tapara states he did not offend in the period from 1983 to 1997. The Tribunal does not consider emphasis on time he did not offend is warranted. The greater issue is the times he has offended, and that he continues to offend despite periods of imprisonment and his visa being cancelled and then reinstated. It is relevant that he returns to offending, despite periods of imprisonment and warnings about the effect of offending on his visa.
Mr Tapara submits he has contributed to the Australian community for 27 years. He has had intermittent periods of employment. He worked from his arrival in 1979 to 1981 on an assembly line before being employed in a warehouse. It was from this employment that video recorders were stolen, and he was convicted of larceny. He was employed by the Department of Roads in NSW from 1984 to 1995, following which he was unemployed for a period before returning to prison in 2001. On his release in 2002 he worked as a truck driver until 2004 and as a warehouse manager from 2004 to 2010, with the last 2 years of this employment being in receipt of workers compensation payments. His periods of employment, in particular his lengthy employment with the Department of Roads, result in him having made a positive contribution towards Australia for these periods.
His previous landlady Mrs BH provided a statement and gave oral evidence to the Tribunal. Mr Tapara said Mrs BH is now 80 years old. Mrs BH’s adult son, Mr BH, who is now 40 years old has an acquired brain injury as a result of an accident. Mrs BH said Mr Tapara assisted her by taking them to medical appointments as well as providing home maintenance. He was present when her son had a seizure, and Mrs BH said he saved her son’s life, catching him before he hit the ground and ringing the ambulance. The period in which Mr Tapara lived with Mrs BH and assisted with her son was a period when her husband was terminally ill. Mrs BH said he has provided good care to her son and was a support on the death of her husband, and that she has had problems accessing assistance for her son as other carers had taken advantage of them. The Tribunal considers Mr Tapara has made a positive contribution to the community through his care of Mrs BH’s son and the support provided to her on the death of her husband.
Letters provided from friends show Mr Tapara has also contributed by providing significant support to friends in times of hardship. His friend Mr AG states Mr Tapara saved him from suicide. His friend attests to his caring nature and generosity, and the Tribunal does not doubt he has supported and been a good friend to others, including in times of need.
While he has not been employed for some time, he has contributed to the community by assisting Mrs BH with the care of her son in exchange for reduced rent for approximately 5 years and has been a good friend to others.
While the Tribunal acknowledges this contribution, which accordingly reduces somewhat the weight to be placed on the expectations of the community, this factor weighs against Mr Tapara and in favour of not revoking the cancellation of his visa.
The Other Considerations
In deciding whether to revoke the mandatory cancellation of a visa, Other Considerations must be taken into account where relevant. These considerations, as set out in Paragraph 14(1) of the Direction, include (but are not limited to):
·International non-refoulement obligations;
·Strength, nature and duration of ties;
·Impact on Australian business interests;
·Impact on victims; and
·Extent of impediments if removed.
International non-refoulement obligations
As Mr Tapara is a citizen of New Zealand, and has not raised any non-refoulment obligations, this does not apply.
The strength, nature and duration of ties to Australia
Paragraph 14.2(1) of the Direction provides that decision-makers must have regard to the following:
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; and
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 Australian indefinitely).
Mr Tapara’s mother lives in Australia as does his sister and two brothers. His mother is now 78 years old. She lives in a town approximately 4 hours away from Mr Tapara. He said before he went to prison he would see her every couple of months when he was allowed to drive. His mother’s health has deteriorated as she has emphysema and needs help to do the shopping. His sister has moved to the same town as his mother, however his sister has a mental illness and cannot provide assistance. His younger brother does not get along with their mother and himself has a heart problem and is not working. Mr Tapara has little contact with his youngest brother as they do not get along. Mr Tapara has an adult daughter in Australia with whom he has little contact.
Mrs Ima Tapara gave evidence and said she would be very sorry to see him leave Australia. She said it is hard for her to get around and she contacts Mr Tapara by messaging him. She has no facilities for him to stay with her if he visits as she lives in a one bedroom flat. She said he previously visited at Christmas and birthdays. She said she would be heartbroken if he leaves. She is thinking she will have to go into a nursing home because she needs medical care for oxygen and is only just managing at home. Her daughter lives a few blocks away, and she has assistance through the government for housing and for aged care services such as shopping. She said she does not see her sons much as she lives in a one bedroom flat and can’t offer them accommodation, but since she has a mobile telephone she talks to them frequently. She said if Mr Tapara was in Australia he could help her if she needed it as it is in their culture to look after old people.
Mr Tapara has a network of friends and can return to live with Mrs BH and her son. He has a connection with the adult children of his partner, who have suffered significant losses in their lives and value his support.
When he was in prison his mother, sister and one of his brothers came to visit; Mrs BH drove his mother to see him. If released from immigration detention, Mr Tapara said he thought he would “maybe” live closer to his mother as his sister cannot assist due to her mental illness and his mother does not have a good relationship with his brother.
Mr Tapara provided letters of support from friends, family and Mrs BH and her son. His friend values his support.
Ms LH provided a statement and gave oral evidence. Ms LH is an adult child of Mr Tapara’s deceased partner. She said she sees Mr Tapara when they visit her mother’s grave on her mother’s birthday and at Christmas, and a few other occasions over summer. At the time of her mother’s death she and her sister were living with their grandmother and would stay with her mother and Mr Tapara on weekends. In the last 2 years they have kept in touch on social media, by phone and by texting. Since the death of her mother, her grandmother has also passed away and Ms LH feels that every familiar thing in their lives has gone. While they are not often in touch, she counts on Mr Tapara’s emotional and financial support. While Mr Tapara was in prison Ms LH broke up with her partner and had no way of retrieving her belongings and finding somewhere to live, and as a result had to work it out herself. Ms LH said her sister has autism and is currently living with her partner. The Tribunal accepts Mr Tapara has a strong and abiding connection with Ms LH and her sister, however this is maintained through calls, texts and social media. At a time she needed his support after breaking up with her partner he was in prison. The Tribunal accepts Ms LH derives a psychological benefit from Mr Tapara being in Australia that would be lost if he is required to return to New Zealand.
Mr Tapara has lived in Australia for a long time and has strong and longstanding ties with family and friends. If he is required to leave Australia, this will have a negative effect on his family, and in particular his mother and Ms LH. Considerable weight is placed on these ties and the period he has contributed positively to the community. However this weight is reduced somewhat because he started offending shortly after arriving in Australia. As a result, this weighs in favour of revoking the cancellation of his visa, but not to the extent it would have had he not stared committing offences within a short period of arriving.
Impact on Australian business interests
It is not suggested that cancelling Mr Tapara’s visa will have an effect on Australian business interests.
Impact on victims
As there is no information before the Tribunal about the impact on victims, this does not apply.
Extent of impediments if removed
Paragraph 14.5(1) of the Direction provides that decision-makers must have regard to the following where relevant:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
Mr Tapara is now 57 years old. He suffers from diabetes, Graves’ disease, and polycythaemia, as well as having had injuries to his shoulders, and says he has been on workers compensation payments and then disability support pension. He has previously been diagnosed with PTSD and depression; however, he states the counselling helped and he has contacts to call if he needs. He is not currently on medication, and in his intake interview for immigration detention did not state he had a mental illness. He states his mental health will deteriorate if he returns to New Zealand. The Tribunal accepts this would be the case, at least in the short term, and he may again require treatment and/or counselling. He acknowledges he would qualify for social security in New Zealand. He would also be able to access equivalent health services to those available in Australia.
There are no language barriers should he return to New Zealand, however Mr Tapara says due to the length of time he has been out of New Zealand, he would not even know how to catch a bus and would get lost. His cousin lives in New Zealand, but he has no contact with his cousin. His father had a sister and brother but they are in a home somewhere. He said there is a housing shortage and he will have difficulty accessing housing.
Mr Tapara’s family and friends are in Australia, and he will face barriers in re-establishing himself in New Zealand as he will have to establish himself after over 41 years of living in Australia.
As he will face some difficulty in re-establishing himself, but has access to social, medical and economic support in New Zealand and does not face language or significant cultural barriers, this factor weighs in favour of Mr Tapara towards revoking the cancellation of his visa.
CONCLUSION
Mr Tapara is well regarded by friends and family and assists them when he can. He has assisted in caring for a person with a disability and supported his mother and Mrs BH in circumstances where her husband was terminally ill. He has had to deal with traumatic events in his life, being first on the scene at his partner’s suicide. With the exception of his blind spot about driving and periods when he was addicted to drugs, he is a good citizen. This affords a greater level of tolerance for his offending.
This tolerance has now been exhausted. He has not abided by repeat orders not to drive to the extent that he has been declared a habitual offender on more than one occasion. He continues to offend and to ignore the warnings provided by being interviewed by the Department and having his visa cancelled.
Two of the Primary Considerations weigh against Mr Tapara and in favour of affirming his cancellation, with the protection of the Australian community weighing heavily against revoking the cancellation. The Primary Consideration of the best interests of a child weigh somewhat in favour of revoking the cancellation. Of the Other Considerations, Mr Tapara’s ties to the Australian community weigh in favour of revoking the cancellation, and the extent of impediments if removed also weighs in favour of revoking the cancellation of his visa.
As Primary Considerations are generally to be given greater weight, and I do not consider there is a reason to depart from this in the circumstances of this case, the decision not to revoke the cancellation of Mr Tapara’s visa is affirmed.
DECISION
The decision under review is affirmed.

I certify that the preceding one hundred and twenty-four (124) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Millar

........[sgnd]............................................
Associate
Dated: 30 September 2020

Date of hearing:

27 August 2020

Applicant

Self-represented

Representative for the Respondent:

Ms G Ng of Australian Government Solicitor

Date of hearing:	27 August 2020
Applicant	Self-represented
Representative for the Respondent:	Ms G Ng of Australian Government Solicitor