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

[2021] AATA 1361

Trout and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1361 (18 May 2021)

Division:GENERAL DIVISION

File Number:          2021/1130

Re:Shaun Trout

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member R Maguire

Date:18 May 2021

Place:Brisbane

The Reviewable Decision is affirmed.

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

Member R Maguire

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 - decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Australian Citizenship Act 2007. (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases

Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548

Minister for Home Affairs v Buadromo [2018] FCAFC 151

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Secondary Material

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

REASONS FOR DECISION

Member R Maguire

18 May 2021

INTRODUCTION AND BACKGROUND

1. The Applicant seeks the review of a decision of a delegate of the Minister (“the Respondent”) dated 23 February 2021[1] made pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the decision made under subsection 501(3A) of the Act to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (“the visa”).

   [1] Exhibit G1, Section 501 G Documents, G3, at pages 9-22.

2. Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period, provided in the Migration Regulations 1994 (Cth) (28 days in accordance with reg. 2.52), and the decision-maker determines that the Applicant passes the “character test”, or, as provided under section 501CA(4)(b), there is another reason why the mandatory cancellation should be revoked.

3. Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under section 501(6)(a) of the Act the person has a substantial criminal record as defined by section 501(7). Relevantly, section 501(7) states:

   (7) For the purposes of the character test, a person has a substantial criminal record if:

   …

   (c) the person has been sentenced to a term of imprisonment of 12 months or more;…

4. The Applicant is a 37 year-old male citizen of New Zealand.[2] He first arrived in Australia on 13 March 2010 at the age of 26 years, and departed for short periods twice since, on 14 March 2010 and 23 May 2011. He last entered Australia and was granted the visa on 4 July 2011.[3]

   [2] Ibid, G7, at page 54.

   [3] Exhibit G1, Section 501 G Documents, G11, page 76.

5. On 27 April 2020, the Applicant was convicted in the Magistrates Court of Queensland on two counts of Enter premises and commit indictable offence and two counts of Enter premises with intent and sentenced to imprisonment for twelve months on each offence to be served concurrently.[4] Time spent in custody prior to sentence (93 days) was taken into account and he was released on parole the day he was sentenced. His parole was suspended indefinitely on 1 September 2020, and he was returned to custody on 10 September 2020.[5]

   [4] Ibid, G4, page 25.

   [5] Ibid, G8, page 69.

6. On 25 November 2020, whilst the Applicant was serving a term of imprisonment (that is, in actual criminal custody) the Respondent, pursuant to section 501(3A) of the Act, decided to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test because of the operation of section 501(6)(a) (substantial criminal record) on the basis of section 501(7), (c) of the Act[6] i.e. that he had been sentenced to 12 months or more imprisonment.

   [6] Ibid, G12, page 77.

7. Notice of this decision was given to the Applicant by hand on 25 November 2020.[7] In accordance with Regulation 2.52(2)(b) the Applicant was invited to make representations to the Minister about revoking the cancellation decision within 28 days after he had received the notice. The Applicant requested revocation by the Minister of the mandatory cancellation on 25 November 2020 within the period and in the manner specified.[8]  

   [7] Ibid.

   [8] Ibid, G7, pages 49-52.

8. On 23 February 2021, the Respondent decided not to revoke the visa cancellation decision made under section 501(3A) of the Act,[9] and on 25 February 2021 the Applicant made the present application to this Tribunal for a review of that decision.[10] The Tribunal has jurisdiction to review this decision pursuant to section 500(1)(ba) of the Act.[11]

   [9] Ibid, G3, pages 9-22.

   [10] Exhibit G1, G Documents, G2 pages 3-8.

   [11] The Act, section 500(6B).

9. The hearing of the instant application was originally listed for 5 and 6 May 2021. At the start of the hearing, it emerged that the Applicant was not in possession of all relevant documents. The documents were eventually delivered to the Applicant around 2:30pm AEST. The Tribunal considered that it was inappropriate for the hearing to proceed in such circumstances, and adjourned the hearing to continue on Friday 7 May 2021, 10:00am AEST. The Applicant appeared via video link, and self-represented. Mr Kyranis of Sparke Helmore appeared for the Respondent. The Tribunal received oral evidence from the Applicant, who was in the migration zone on shore in Australia. The complete suite of written material forming the exhibit record is further particularised in the Exhibit Annexure attached hereto and marked “A”.

10. By operation of section 500(6L)(c) of the Act, when an application is made to the Tribunal under section 501CA(4) of the Act, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1), the Tribunal is taken at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) to affirm the decision under review. At the hearing, the parties agreed that for the purposes of this review, and section 500(6L)(c), the 84^th day is Tuesday 18 May 2021. It is therefore open to the Tribunal to make a decision prior to midnight on that date.

    ISSUES

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

    4The 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.

12. It is not disputed that the Applicant has made the representations required by section 501CA(4)(a) of the Act.

13. There are therefore two issues presently before the Tribunal:

    ·whether the Applicant passes the character test; or

    ·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

14. If the Applicant succeeds on either ground, the cancellation of the Applicant’s visa should be revoked.

15. In considering s. 501(CA(4), it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[12]

    …there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[13]

    [12] [2018] FCAFC 151.

    [13] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016)153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

    DOES THE APPLICANT PASS THE CHARACTER TEST?

16. The character test is defined in section 501(6) of the Act. Under section 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in section 501(7). Section 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”.

17. The Applicant was convicted in the Magistrates Court of Queensland on 27 April 2020 on two counts of Enter premises with intent to commit indictable offence, and two counts of  Enter premises with intent to commit indictable offence and sentenced to concurrent terms of 12 months’ imprisonment on each count.[14]

    [14] Exhibit G1, G Documents, G4 at page 25.

18. As the custodial term imposed was “a term of imprisonment of 12 months or more”, the Applicant does not pass the character test by virtue of his “substantial criminal record” as defined in section 501(7)(c) of the Act.

19. At the hearing, the Applicant conceded that he does not pass the character test as prescribed by section 501 of the Act.

20. The Tribunal therefore finds that the Applicant does not pass the character test pursuant to section 501(6)(a) of the Act and that the Applicant therefore cannot rely on section 501CA(4)(b)(i)[15] of the Act for the mandatory cancellation of his visa to be revoked.

    [15] Note: This provides that the Minister is satisfied that the person passes the character test (as defined by section 501).

21. The remaining question therefore is found in section 501CA(4)(b)(ii), namely whether there is another reason why the original decision should be revoked.

    IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?

    Ministerial Direction No. 90

22. In considering whether to exercise the discretion in section 501CA(4) of the Act, the Tribunal is bound by section 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 90”) has application.[16]

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

23. The purpose of the Direction as stated in paragraph 5.1(4) is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act

24. Paragraph 5.2 of the Direction sets out the principles which bind this Tribunal:

    The principles below provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2.

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

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

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

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

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

25. Paragraph 6 of the Direction requires that informed by the principles in paragraph 5.2, decision-makers must take into account the considerations in sections 8 and 9, where relevant to the decision.

26. Paragraph 7(1) of the Direction provides that in applying the considerations, (both primary and other) information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 7(2) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.

27. Paragraph 8 of the Direction sets out the following primary considerations in making a decision under section 501(1), 501(2), or 501CA(4):

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

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

    (3)The best interests of minor children in Australia;

    (4)Expectations of the Australian community.

28. The Other Considerations which must be taken into account are provided in a
    non-exhaustive list in paragraph 9 of the Direction. These considerations are:

    a)International non-refoulement obligations;

    b)extent of impediments if removed;

    (c)impact on victims;

    (d)links to the Australian community, including

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

    ii)impact on Australian business interests.

29. The Tribunal notes that paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations and that paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.

30. The Tribunal now turns to a more detailed consideration of Direction No. 90.

    PRIMARY CONSIDERATION  1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

31. In considering Primary Consideration 1, paragraph 8.1(1) of the Direction requires that decision-makers should keep in mind 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. Decision makers are to have regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are and have been law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.

32. Paragraph 8.1(2) of the Direction requires consideration to be given to:

    i)the nature and seriousness of the non-citizen’s conduct to date; and

    ii)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    Nature and seriousness of conduct

33. Paragraph 8.1.1(1) of the Direction requires that in considering the nature and seriousness of the non-citizen’s offending or other conduct to date, decision makers must have regard to the following:

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

    i)violent and/or sexual crimes;

    ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

    iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

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

    i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    iii)conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c);

    iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention or an offence against section 197A of the Act, which prohibits escape from immigration detention;

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

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

    e)the cumulative effect of repeated offending;

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

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

    Risk to the Australian community

34. Paragraph 8.1.2 (1) of the Direction requires that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future becomes lower as the seriousness of the potential increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated maybe unacceptable.

1. Paragraph 8.1.2 (2) of the Direction requires that in considering the risk that maybe posed by the noncitizen 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:

   i.information and evidence on the rest of the noncitizen reoffending; and

   ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

   c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

   PRIMARY CONSIDERATION 2 – FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN

2. Paragraph 8.2(1) of the Direction reflects the Government’s serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.

3. Paragraph 8.2(2) of the Direction provides that the consideration of family violence is relevant in circumstances where:

   a)    the non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven, howsoever described, that involve family violence and/or

   b)    There is information or evidence from independent and authoritative sources indicating that the noncitizen is, or has been, involved in the perpetration of family violence, and the noncitizen being considered under section 501 or section 501 CA has been afforded procedural fairness.

4. Paragraph 8.2(3) of the Direction requires that in considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:

   a)the frequency of the noncitizen’s conduct and/or whether there is any trend of increasing seriousness;

   b)The cumulative effect of repeated acts of family violence;

   c)Rehabilitation achieved at time of decision since the person’s last name act of family violence, including:

   i.the extent to which the person except responsibility for their family violence related conduct;

   ii.The extent to which the noncitizen understands the impact of their behaviour on the abuse and witness of that abuse (particular children);

   iii.efforts to address factors which contributed to their conduct; and

   d)Whether the noncitizen has reoffended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status should the noncitizen engage in further acts of family violence.

   PRIMARY CONSIDERATION 3 - BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

5. Paragraph 8.3 (1) of the Direction requires decision-makers making a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of child affected by the decision.

6. Paragraph 8.3 (2) of the Direction provides that this consideration applies only if the child is, or would-be, under 18 years old.

7. Paragraph 8.3(3) of the Direction provides that if there are two or more children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

8. Paragraph 8.3(4) of the Direction provides that 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 child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way whether physically, sexually or mentally;

   h)    evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

   PRIMARY CONSIDERATION 4: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

9. Paragraph 8.4 of the Direction details the expectations with the of the Australian Community as follows:

   (1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a noncitizen has engaged in serious conduct in breach to this expectation, or where there is an unacceptable risk that they may do so the Australian community, expects the Government to not allow such a noncitizen to enter or remain in Australia.

   (2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, maybe appropriate simply because the nature of the character concerns or offences is such that the Australian would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their pieces, if they raise serious character concerns through  contact, in Australia or elsewhere, of the following time:

   (a)acts of family violence; or

   (b)causing a person to enter it into, or being party to (other than being a victim of), a forced marriage;

   (c)commission of serious crimes  against women, children, or other vulnerable members of the community such as the elderly or disabled; in this context,” serious crimes” includes crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, commercial abuse/material exploitation or neglect;

   (d)Commission of crimes against government representatives or officials you to the position they hold, or in the performance of the duties; or

   (e)Involvement or reasonably suspected involvement in human trafficking all people smuggling, or in crimes that are of serious international concern including, but not limited to war crimes, crimes against humanity and slavery; or

   (f)work at exploitation.

   (3)The above expectations of the Australian community apply regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community.

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

   OTHER CONSIDERATIONS

10. Paragraph 9(1) of the Direction requires decision makers to take into account other considerations, including, (but not limited to):

    a)International number non-refoulement obligations in accordance with paragraph 9.1;

    b)extent of impediments if removed in accordance with paragraph 9.2

    c)Impact on victims in accordance with paragraph 9.3

    d)Links to the Australian community reflecting the principles in paragraph 5.2 and paragraphs 9.4.1 to 9.4.2.

11. The Tribunal now turns to a consideration of the evidence having regard to the Direction.

    EVIDENCE BEFORE THE TRIBUNAL

    Documentary evidence

12. On 25 November 2020, the Applicant submitted a Request for Revocation form to the Department[17] followed by a Personal Circumstances form.[18] In this form, the Applicant nominated his son, K, presently aged eight years, and his daughter, H, presently aged six years as the only minor children impacted by his possible deportation. He described strong relationships with both and said they would be devastated and heartbroken if he were to be deported and expressed concern as to the impact this would have on their mental health. The Applicant also listed his parents and two sisters all of whom continue to live in New Zealand. He listed one cousin as living in Australia. Regarding his criminal history and risk of reoffending, the Applicant said that:

    My offending was very out of character, after the breakdown of my relationship with [Ms M] my world was torn apart, I had never spent a night away from my children. I became very depressed, I learned that my ex-partner was now seeing my best friend, and this was hard to deal with, I made a series of poor decisions coming from self-medicating to try to mask the pain. I was also made redundant at the same time.

    [17] Exhibit G1, Section 501 G Documents, G7 pages 49-52.

    [18] Ibid, pages 53-66.

13. He had chosen to do numerous rehabilitation courses whilst in gaol. He stated that he never received a warning regarding his visa status. He also said that reoffending was not an option in his view, and that he had a job to go to when released and that this would be the “start of building a strong foundation with structure in [his] life once again”.

14. The Applicant said that he was currently the subject of a Domestic Violence Order (DVO) regarding his ex-partner, but there were no further charges against him to be dealt with. He listed continuous employment from May 2010 until December 2019 with three different businesses. The Applicant did not claim to have any diagnosed medical or psychological conditions, but said that he was very concerned about being returned to New Zealand, and what that would do to his mental health, and the mental health of his children, stating:  “my children need me in their lives and I most definitely need them.”[19] He expressed fear that if returned to New Zealand he would not see them until they were over 18 years of age and they would not want to know him.

    [19] Exhibit G1, Section 501 G Documents, page 66.

15. In the decision under review dated 23 February 2021, the delegate provided the following summary of the submissions by the Applicant,[20] which the Tribunal respectfully adopts:

    ·He has been resident in Australia for 10 years, after migrating with his ex-partner. He commenced working a month after arriving and maintained steady employment thereafter, until the period leading up to his offending.

    ·His eight-year-old son was born in Australia. He became unwell at six months of age and battled “his illness” (unspecified) for one and a half years. He is “in remission”.

    ·His six-year-old daughter also “had health complications” however is “doing well”.

    ·He has a very close relationship with both children and intends to seek shared custody of them once released. It would devastate the children if he is removed from Australia.

    ·His marital relationship deteriorated under the strain of their children’s health issues, and he “struggled with the breakup and made a serries [sic] of poor decisions”.  He was also made redundant after his relationship “which didn’t help”.

    ·He “self-medicated” his symptoms of “severe depression” with methamphetamine, which caused him to behave in an “out of character” manner.

    ·He sought to do drug-related courses in prison by getting onto waiting lists.

    ·He is “deeply ashamed” and embarrassed by his behaviour and would like the opportunity to make amends, provide for his family and support his children.

    [20] Ibid, G3, page 14, paragraph 11.

16. The Tribunal notes that the Applicant has operated heavy machinery for nine years in Queensland, helping to build roads, mine sites, and local infrastructure. The Tribunal accepts that the Applicant was responsible in his tax affairs over this period.

17. On 29 April 2021,the Applicant provided further documents as follows to the Tribunal:

    ·an email[21] dated 28 April 2021 from Mitchell Crouch, a friend of five years, and former workmate. Mr Crouch described the Applicant as a hard worker who started a downhill spiral which was completely out of character after the breakdown of his marital relationship. He described the Applicant as normally being “a loving caring devoted father to his children hard worker and a good mate.” Mr Crouch expressed the opinion that the Applicant’s children need him in Australia, and said that the Applicant has a lot of support within Australia and is now willing to ask for help when it is necessary. He expressed concern about the impact of the Applicant’s deportation on his two children. He said the Applicant had told him that if he is able to stay, he won’t be returning to the life he was living and will be changing for the better.

    [21] Exhibit A3, Statement of Mitchell Crouch dated 28 April 2021.

    ·An email[22] dated 18 April 2021 from the Applicant’s mother, who lives in New Zealand. She described that the Applicant’s son is suffering from an autoimmune disorder, and said the Applicant was always busy with work and hospital visits. She expressed admiration for his composure in trying circumstances dealing with sick and naughty children. She described him as a good father who adores his children, but said the breakdown of his relationship when his former partner left, emptying the house and taking the children without any warning, and finding out that she was having a relationship with his best mate “threw his world into a nosedive”. She said that losing his job at the time because there was no more work “just pushed him over the edge”. She said the Applicant had now struggled to see his children for two years, and his ex-partner has not allowed access “which has not helped.”

    [22] Exhibit A2, Statement of Christine Trout dated 18 April 2021.

    ·A letter[23] dated 13 April 2010 from Pearce Earthmovers Ltd, his employer in New Zealand for over two years prior to his coming to Australia. The letter spoke positively of his abilities, and wished him well for the future.

    [23] Exhibit A5, Reference Letter from Pearce Earthmovers Ltd dated 13 April 2010

    ·A letter[24] dated 11 May 2018 from L&D Contracting confirming that the company no longer employed the Applicant due to shortage of work.

    ·A letter[25] dated 7 June 2007 from Living Earth Ltd stating that the Applicant had been employed with them since 1999. The letter recounted that he had worked as a supervisor managing at times, a staff of 12. The letter described the Applicant as “a valued member of the staff and management team and has proven to be reliable, trustworthy and hard-working who had proven to be accountable and responsible”. The letter stated that the Applicant was leaving the company of his own accord and would be missed and hard to replace.

    ·An email[26] dated 28 April 2021 from the Applicant enclosing six photographs of him with his children.

    ·The Applicant’s ATO assessments[27] for the years 2010 – 2019.

    ·Rehabilitation evidence comprising;[28]

    oStress Management Workbooks numbered 1 to 4;

    oA Do – It Program Participant Workbook;

    oA Relapse Prevention and Management plan; and

    oAn Anger Management Workbook.

    [24] Exhibit A8, Letter of Redundancy from L&D Contracting.

    [25] Exhibit A4, Reference Letter of Living Earth Ltd dated 7 June 2007.

    [26] Exhibit A7, Photographs of the Applicant’s Children.

    [27] Exhibit A6, Applicant’s Notice of Assessments for years ended 30 June 2010 to June 2012 and years ended 30 June 2014 to 30 June 2019.

    [28] Exhibit A9, Applicant’s Rehabilitation Evidence.

18. The only transcript of prior proceedings before the Tribunal is that of 27 April 2020 at which time the Applicant appeared before Acting Magistrate Walker in the Brisbane Magistrates Court and pleaded guilty to, and was sentenced in respect of 35 offences committed between 28 March 2019 and 25 January 2020.

19. An extract of His Honour’s sentencing remarks[29] is as follows:

    [29] Exhibit G1, Section 501 G documents G6 pages 33 – 41.

    “That period is 28 March 2019 to 25 January 2020, a period of almost a year where you were operating what – in a way that could be described as without any regard for the law at all. Certainly, without any regard for the rights of other persons in the community, their property rights, and without any consideration to the impact of your offending on those persons.

    The offences include some quite serious property offences. Entering premises and committing indictable offences in the premises, for example, is a particularly serious property offence which carries as a maximum penalty, if I recall correctly, 14 years imprisonment. The other offences – most of the other offences carry as maximum penalties significant terms of imprisonment too.

    Receiving tainted property, stealing, fraud all carry maximum terms of imprisonment of several years. Possessing dangerous drugs has a maximum penalty of 15 years imprisonment in the way that those charges have been laid in your case. A couple of the offences can be dealt with by way of fine only, contravening a direction or requirement of police, unauthorised dealing with shop goods.

    The offence that perhaps stands out is an offence apart from the others, is the offence of contravening a domestic violence order. It can be met with a maximum penalty of three years imprisonment.

    The circumstances of all the offences… shows the detail of the litany of offending you’ve engaged in over that lengthy period of time. It also brings home in reading the description of the property offences, in particular the impact of this sort of offending, as I mentioned briefly earlier, on the individuals who are the victims of this person.

    For example, a person running a small business discovering, when they go to open the shop the next day, that it’s been unlawfully entered and ransacked, items stolen and not recovered. And the impact on that business of, first of all, understanding that the business has been violated in that way and then dealing with the aftermath of trying to put things back together.

    The same can be said for the victims of the offences where you entered apartment complexes, for example, or entered the basement of building and unlawfully entered compounds and stole bicycles and the like. I can only imagine not just the inconvenience suffered by the victims of those offences but their distress in discovering items of significant value, personal property items had been stolen.

    The motivation for this offending, it seems, was your methylamphetamine addiction. You’ve been candid about that. It’s been the subject of submissions made on your behalf. It seems that, through a series of events in your life, starting with the loss of your employment and then the loss of your place of residence, you descended into a life on the streets where you succumbed or you found yourself the subject of an addiction to methylamphetamine, and that, no doubt, was the motivator for all this offending.

    You have some criminal history. It’s not significant. You have three previous convictions in Queensland. They are nowhere near the magnitude of this level of offending. …

    The drug offences, it seems, occurred before the commencement of this period of offending but they might be indicative of what was to come. Your history in New Zealand is too dated and far less serious than this degree of offending. …

    These are serious offences that call for appropriate deterrent penalties to be imposed, sentences that reflect the denunciation of this sort of offending. You have good prospects for rehabilitation. I must take that into account in framing a sentence too…

    And I can see that you’ve been in custody for 93 days. You’ve displayed yourself as a well-behaved incarcerated person. You’ve requested to participate in programs and it seems that’s not been possible because of waiting lists, but you’ve certainly made efforts to do so.

    It seems to me, you are a person with good prospects of rehabilitation and that is further evidenced by the fact that you have children, you have a good employment history. You have good reasons to put this offending lifestyle behind you, return to employment, return to your responsibilities as a father and now see that you have your life back on track.

    I’m satisfied in all the circumstances that the most serious of the offences warrant orders for imprisonment. In fact I’m satisfied that I should impose concurrent terms of imprisonment for most of the offences. The sentences that I’ve decided upon are 12 months imprisonment for each of the offences of either entering premises and committing an indictable offence or entering premises with intent to do so.

    Periods of six months for the offences of receiving tainted property and a three month imprisonment for the offences in relation to possession of drugs, possession of drug utensils, possession of things for use in connection with the commission of drug offences, stealing, fraud, possessing property suspected of being stolen, possessing tainted property, trespass.

1. In an Immigration Report prepared by Queensland Corrective Services[30] it was recorded that the Applicant had not been named as the perpetrator in any recorded breaches or incidents during his incarceration. He had however returned two positive urinalysis tests whilst subject to community supervision. He had received no visits during his incarceration.

   [30] Exhibit G1, Section 501 G Documents, G9 pages 72 - 73.

2. A Queensland Police Service Sentencing Schedule (“the sentencing schedule”)[31] shows that the Applicant was present in the Maroochydore Magistrates Court on 8 February 2018 when a protection order was made against him in respect of his former partner and their two children. Between 25 December 2019 and 6 January 2020 the Applicant sent one text message and made one phone call to his former partner in which he used profane language toward her and her then current partner, his former best friend. His essential complaint was that his estranged partner was barring him from seeing his children, and saying “all I’ve wanted is to be part of there [sic] lives”.

   [31] Exhibit R2 Respondent’s Tender Bundle, R1 page 1.

3. The Tribunal has before it an Offender Case File – Prison Employment Case Report[32] which was generally positive and favourable. Whilst in custody he had been employed as an Industries Worker, and Senior Industry worker. His attendance was described as punctual and consistent with no unexplained absences. His attitude towards his employment was recorded as “[The Applicant] enjoys his work and is a diligent worker. He is an active member and works well in a team environment.” With regard to his compliance with rules and directions given by staff, it was recorded “[The Applicant] is fully compliant with workshop rules as well is workplace health and safety requirements. He works well with others and does take direction from staff without question”. The Applicant’s responses to problems were described as “The prisoner has primarily been able to resolve problems on his own, where capable. Where officer intervention is required, he is not afraid to ask.”

   [32] Exhibit G1, Section 501 G Documents, G7 page 67 – 68.

4. Prior to the hearing, the Applicant delivered a statement in the form of an email[33] dated 2 April 2021 in which he described his life to date. The Applicant described a good upbringing in a stable home environment with his parents (who have been married for 30 years) and two siblings, all of whom live in New Zealand. He left school at the age of 15 the day after obtaining his driver’s licence and commenced work as a labourer for a recycling company. Within weeks he was operating heavy machinery such as excavators, front loaders, and spent 10 years working with the one company, prior to taking an offered job as an operator with a small earthmoving company.

   [33] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions dated 2 April 2021.

5. In about 2004, at the age of 21, he formed what was to be a long term relationship with a woman who shall be referred to as M. When M was offered a job in Brisbane, the Applicant resigned his job of two and a half years in order to accompany her to Brisbane. Upon arrival in Australia, the Applicant quickly found work, and remained in stable employment for many years, working on major infrastructure projects at various locations in Queensland.

6. In 2012, M gave birth to their son K, and in 2014 she gave birth to their daughter H. Both K and H are New Zealand citizens, and reside with M and her present partner in Brisbane. Assuming, as appears likely, the two children remain in Australia until they are ten years old, they will be Australian citizens by operation of section 12 of the Australian Citizenship Act 2007 (Cth).

7. The Applicant commenced Fly-in-fly-out (“FIFO”) work when K was four months old. When K was six months old, the Applicant received a phone call from M telling him that he needed to return home urgently as K had to go to hospital. The Applicant said that K was on the verge of heart failure, had next to no platelets in his blood and severely low red blood cells and no one knew why. In the words of the Applicant, “auto immune haemolytic anaemia, his immune system was killing him”. K eventually received a diagnosis of Evans Syndrome, a particularly serious chronic ailment which can seriously impact life expectancy.

8. Following this development, the Applicant ceased his FIFO work and joined a company building roads, demolishing buildings, and excavating basements for apartments under construction in Brisbane.

9. The Applicant’s daughter H began displaying very concerning symptoms from the time she was two and a half years old, including “her eyes rolled back in her head … and she was blank for a short period of time”.  These episodes continued, and became of longer duration. The Applicant and M believed she was having “absent seizures”. The Applicant expressed concern that during those seizures there was a lack of oxygen to the brain, which could be very damaging. Over a period of time the Applicant and M noticed triggers like loud noises, the noise of a whippersnipper, and thunder would trigger such a seizure. Following extensive medical tests, H was diagnosed with a cyst behind the frontal lobe of her brain, and a double up of a particular gene.

10. Unsurprisingly, the cumulative stress of parenting two seriously ill children took a toll on the relationship. In 2017, M departed the premises with the children and without notice to the Applicant. She subsequently commenced a relationship with a man who had been the Applicant’s best friend for about 20 years. She is now married to him, and they have a child.  

11. When M left the Applicant, she relocated the children one and a half hours away from him, making it difficult for him to have contact. This appears to have been the first in a chain of events which impeded the Applicant’s access to his children. Again, the Applicant’s mental health deteriorated. He stated that he “was coming home to a house full of memories, and that was breaking me.” This led him to make “the biggest mistake of my life, I tried to mask my pain with drugs. I wish I was able to talk to friends but I bottled everything up and slowly became more reliant on drugs, shutting everyone out.”[34] He continued:

    [34] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions dated 2 April 2021.

    [M] started to let me speak to [K] and [H] less an  less as time went on, she at times used them as weapons because she knew it hurt me, from when she took our kids I have not been able to spend any occasions like Xmas birthdays I don’t Evan receive a phone call on Father’s Day, regretfully I lashed out via tx message on some of these occasions an I hate that I couldn’t  control myself better. I was hurting and said things I wish I didn’t I just really struggled to understand why she would stop me seeing my children.

    Around March 2018 I was made redundant from work, it was another blow I really didn’t need and construction was quite, I struggled to get another job which impacted my mental health evan more I had always had a job from the age of 15, I started to feel useless, I applied to adds but nothing back, I could only pay rent on my apartment for a short period after work ceased which led to me being evicted.

    I basically made wrong decision after wrong decision from here, I hit rock bottom, I done things I would never do completely out of character, my behaviour was disgusting, I have always known right from wrong, I always tried to help people if I could, nice respectfull treated people as I’d like to be treated, I’m so ashamed of my actions yes I was in a bad place but the people that were effected by my actions did not deserve it, I wish I could apologise to them and turn back time so I didn’t inconvenience them.

    [M] started seeing my best friend I had known since the age of 15, at this point I felt betrayed by my two closest friends, she no longer let me see the kids often I was really a broken man who needed help, I had never asked for help but I wish I had, I shut everyone out all I really wanted was to hug [K and H] and get my life back on track for them.

    It was too late at this point I went to jail.

    2 days after getting out of jail I was charged with breaching dvo on Xmas day for sending a tx, a couple of days after that I was charged for break and enter, these crimes were committed before I had gone to jail, I also learned that [M] was about to have a baby to my so-called friend. On [date removed] [K’s] birthday I called to wish him happy birthday. He is lead to believe that I don’t want to see him and that was so far from the truth. I told [K] that I loved him and missed him and he didn’t respond, 3 times I said it because I thought maybe he didn’t hear me. 3 times he never said he loved me back.

    My heart broke…

    [K and H] are everything to me. They are the reason I have attended courses to help make me a better person, I’m still in Australia fighting for my visa locked up in detention without a lawyer 100% for them, the reason I never used drugs in jail, the reason I exercise every day. I will give my life without hesitation that would help them I’m doing everything I can to make myself better to be a father they can be proud of.

    I was very hurt by that phone call, I made the mistake of tx [M] again after that breaching the dvo again, I turned to drugs that night and over the next 2 days I was a mess and I stopped caring about myself or anyone else. 2 weeks later my parole was cancelled and I went to jail and released into detention in Feb 2.

    This time around after getting out of jail [M] and her partner got married while I was in jail. I’m happy for them no longer angry but I really hope that one day I can sit with [M] over coffee and talk about our children an apologise for my txs I sent.

    I’m deeply ashamed of my actions, yes I had a bad run but that gave me no right to let my actions get out of hand and I am sincerely sorry to the Australian community and I have every intention of doing the right thing to contribute in a positive way in future.

    I have good support outside I’m not going to shut everyone that cares, drugs did not mask pain or help, it’s very clear they clouded my judgement I was blinded my addiction acting out of character, I now know I can ask for help it doesn’t make me less of a man.

    I have a job to go to when I am released, I ask that you please don’t judge my character on a criminal base from the past couple of years. I definitely have make mistakes yes, but my character has 36 years of positive things which by far outweigh the mistakes I’ve made and years a positive contribution to Australian community to come.

    Yes I have family in New Zealand. I love them all. [K and H] are my world and they are my priority. I cared for them in the past and intend on caring for them in the future. They in my eyes are where I belong.”

    [Errors in original]

    Evidence at Hearing

12. The commencement of the hearing was delayed in consequence of technical issues. The Applicant appeared from Western Australia via video link, and the Tribunal and Respondent’s representative were in Brisbane. The Tribunal was not satisfied that the Applicant had all the relevant documents before him, and the matter was stood down until 1:00pm AEST to allow this to be cured, and to enable the Applicant some time to consider the documents and a copy of Direction 90.

13. Upon resumption, it was confirmed that the Applicant had all of the material before him, however he had only had them in his possession for 20 minutes, and the Tribunal was of the view that in the interests of procedural fairness it was not reasonable to ask the Applicant to proceed to hearing in such circumstances. The hearing was adjourned until Friday 7 May 2021 at 10:00 am AEST.

14. At the resumed hearing, the Tribunal adopted the draft exhibit register as attached and marked “A”. The Applicant relied upon his statement as submitted.

15. Under cross-examination the Applicant confirmed he was born in Auckland New Zealand and lived there until he arrived in Australia when he was 27 years of age. He said that he was able to get a driver’s licence at the age of 15. He was in 5^th form, his tenth year of schooling. His parents and sisters still live in New Zealand outside Auckland.

16. Taken to his mother’s statement, he confirmed that his parents are aware of everything, and understand his circumstances, and would like him to come home but he would not feel he was doing the right thing by his children. He has not seen his family in New Zealand for eight years and they miss him. He has a good relationship with both parents. His father was hard on him when he was younger.

17. The Applicant said that if he has to return to New Zealand, he would seek work driving heavy machinery, which is what he has done until a couple of years ago. He was referred to his former employers’ statements.[35] He said he would not be seeking work with either of them as one had shut down and the other was doing work beneath his current skill level, and he could make better money elsewhere. He agreed that his references would help him gain employment.

    [35] Exhibit A4, Reference Letter from Living Earth Ltd dated 7 June 2007 and Exhibit A5, Reference Letter from Pearce Earthmovers Ltd dated 13 April 2010.

18. Taken to his personal circumstances form he confirmed that his relationship status is still separated from his former partner, the mother of his two children. He has a cousin living in Australia but he has not seen him since he was young. He was seeing woman before he went to gaol, and he would stay with her if he gets his visa back, and she is very supportive in trying to help him get back on his feet. She lives on the Gold Coast. He also has another female friend in Brisbane, who has also offered him a place to stay. He described them both as good people and away from all the negative things in his life. He is not sure where he would live in New Zealand if he had to return. His parents are in a retirement home. He is not on speaking terms with one sister and has not met the partner of the other, who has three children. He does not want to invade on their privacy, and would not seek to reside with them.

19. Mr Kyranis referred the Applicant to his criminal history and the Applicant confirmed its correctness, but disagreed with the facts of an offence of ‘enter premises with intent to commit indictable offence’ committed on 28 June 2019 as set out in the sentencing schedule.[36] The Applicant said that that he did enter the relevant premises with a female but did not actually ransack the premises with her. The Tribunal has reviewed that sentencing schedule and notes that it contained no clear allegation that the Applicant had actually ransacked the premises, or taken any property, but that “unknown persons, untidily searched and a number of property items including an antique cash register, laptop, eftpos machine and small change (Australian currency) was stolen”. The Applicant said that he had pleaded guilty as he had been told that he would be released immediately if he did. Mr Kyranis conceded that the Applicant’s evidence was consistent with the police report.

    [36] Exhibit R2, Respondent’s Tender Bundle, page 16.

20. Mr Kyranis referred the Applicant to his sentencing of 27 April 2020. He referred the Applicant an offence of receiving tainted property committed on 23 August 2019, and read a summary of the relevant facts.[37] The  summary was that the Applicant had stolen some power tools etc that had been stored in a car park in secure building, and subsequently pawned the items which were later recovered. The Applicant agreed that he had known the goods were stolen and that he had pawned the goods. He said that he could not remember if he had attended the car park, but that he knew that they were stolen. He said his memory may be impaired because he was on drugs every day at this time. He said his memory is distorted by the drugs he was using.

    [37] Ibid, page 25.

21. Mr Kyranis referred the Applicant to various offences and the relevant facts set out in the Respondent’s Tender Bundle, and the Applicant generally agreed that the facts as recorded presented a fair summary of events.

22. Mr Kyranis referred the Applicant to a contravention of a domestic violence order offence that was committed on 11 May 2019.[38] The Applicant said that he still remembered the day, and agreed that what was recorded in the sentencing schedule was a fair summary. The Applicant said that this episode was the last time he had seen his children. Prior to the day, he had not seen his children for a couple of months. He had misread a text message as to the meeting time, and turned up late and was told by M that the children had to go to swimming lessons. He had asked her if the children could skip swimming as it was raining, and she refused this request.

    [38] Ibid, page 13.

23. He physically carried the children into McDonald’s, and sat outside a glass door where it was not so busy. M was not happy that they were seated outside. She then asked why they were sitting outside and told the children they were leaving. The Applicant said that he began to get annoyed. M proceeded to depart with the children, and as they were leaving his son turned around and looked at him and he beckoned his son to come and give him a hug, whereupon his son burst into tears because, as the Applicant put it, “he didn’t know if it was okay, he didn’t know if he would get in trouble for coming to give me a hug or whether he should go with his mum.” The Applicant said that he would remember the look on his son’s face for the rest of his life, and that M then grabbed the boy and took him away. The Applicant said that M’s conduct was hurting their children and the look on his son’s face had crushed him, as K was six and it made him angry that M was capable of doing this to their children, and he became a mess. He wrote her a text message, and was so angry that he threatened to hurt her. The Applicant said that M taking his children has destroyed his life, and led him to bad decisions.

24. Mr Kyranis referred the Applicant to an episode on 27 April 2020 where the Applicant was sentenced for four offences of entering premises, and released the same day. On 11 December 2020, the Applicant was sentenced for two offences (including a breach of a DVO) which he had committed prior to being sentenced in April 2020.

25. The Applicant said that the large number of fraud offences that he was sentenced for on 11 December 2020 had all been committed on the day after his son’s birthday which was the last time he had spoken to him.

26. Whilst in prison the Applicant had written letters to his children asking them to write to back to him, however the letters were returned unopened and he did not write anymore as he did not know if the children got to see them, and it was too hard emotionally for him to keep trying to communicate.

27. The Applicant has now been in gaol or detention since 10 September 2020. He had breached a condition of his parole, and was taken back into custody. The Applicant accepted the accuracy of the circumstances outlines to him by Mr Kyranis from the sentencing schedule regarding his breach of the domestic violence order between 25 December 2019 and 6 January 2021 and did not disagree with its accuracy. On this occasion he had sent a text message and made a phone call to M both of which contained profane language towards her. Other than the episode at McDonald’s which was after he had not seen the children for about three months, he said his breaches were around Christmas and the children’s birthdays. His phone calls on those occasions were unanswered. He said that his inability to speak to them “kills me”. This upset him and he communicated with M.

28. The Applicant did not contest facts put to him by Mr Kyranis regarding various offences as referred to at various places[39] in the Respondent’s Tender Bundle, including the 18 credit card fraud charges totalling $775.34 committed over two days immediately after his son’s birthday, when he said he was affected by methamphetamine.

    [39] Exhibit R2, Respondent’s Tender Bundle, page 2, page 5 and page 76; Exhibit G1, Section 501 G-documents, G6.