Tuioti and Minister for Home Affairs (Migration)

Tuioti and Minister for Home Affairs (Migration) [2019] AATA 4423 (30 October 2019)
Division:GENERAL DIVISION
File Number(s): 2019/4847
Re:Enoka Tuioti
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis

Date:30 October 2019
Place:Brisbane

The decision under review is affirmed.
.............................[SGD]...........................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – mandatory cancellation of Class TY Subclass 444 (Special Category) Temporary Visa under section 501(3A) – where Delegate of the Minister decided pursuant to subsection 501CA(4) not to revoke mandatory cancellation decision – where Applicant does not pass the character test – whether there is another reason to revoke the cancellation of the Applicant’s visa under subsection 501CA(4)(b)(ii) – application of Direction No 79 – decision under review affirmed
Legislation
Domestic and Family Violence Protection Act 2012 (Qld)
Drugs Misuse Act 1986 (Qld)
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
DKXY v Minister for Home Affairs [2019] FCA 495
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Stone and Minister for Immigration & Ethnic Affairs (1981) 3 ALN 81
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
TGXY and Minister for Home Affairs [2019] AATA 757
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
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 Theodore Tavoularis
30 October 2019
INTRODUCTION AND BACKGROUND

Mr Enoka Tuioti (“the Applicant”) is a 34 year old citizen of New Zealand[1] who first arrived in Australia on 2 April 2006[2]. The most recent visa granted to him was a Class TY Subclass 444 Special Category (Temporary) Visa (“the visa”) which was granted on 2 June 2012[3].
[1] Exhibit R2, s 501 G-Documents, G17, page 105.
[2] Ibid, G34, page 154.
[3] Ibid, G3, page 8.
The Applicant’s criminal history in Australia commenced in 2009 and continued until his most recent period of incarceration, which commenced on 21 February 2018. His offending includes property offences, assaults, drug offences including trafficking in methamphetamines, obstruct police, and breaches of probation and bail conditions.[4]
[4] Ibid, G9, pages 80-84. Note: the Applicant was sentenced to imprisonment on 20 March 2018 but he was already in custody in relation to other charges from 21 February 2018.
While serving this term of imprisonment, a delegate of the Minister for Home Affairs (‘the Minister” or “the Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided on 23 April 2018 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[5]
[5] Ibid, G3, pages 8-12.
On 1 June 2018, the Applicant lodged a request with the Minister’s Department for a revocation of the decision to mandatorily cancel his visa.[6] The delegate of the Minister decided on 7 August 2019, pursuant to s 501CA(4) of the Act not to revoke the cancellation of the subject visa.[7]
[6] Ibid, G16, pages 100-103 and G17, pages 104-115.
[7] Ibid, G8, page3 63-64.
The Applicant lodged an application with this Tribunal on 10 August 2019 seeking a review of that decision.[8] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.[9]
[8] Ibid, G1, pages 1-2.
[9] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see s 500(6B) of the Act.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[10]
“…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…”[11]
[10] [2018] FCAFC 151.
[11] 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).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[12] I will address each of these grounds in turn.
[12] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 20 March 2018 the Applicant was convicted of Trafficking in dangerous drugs (schedule 1) contrary to s 5(1)(A) of the Drugs Misuse Act 1986 (Qld) and sentenced to four years and six months imprisonment with immediate eligibility to apply for parole.[13] He was also sentenced for numerous other offences[14] but it is this sentence of four and a half years imprisonment that is relevant for present purposes. I note that what matters is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served[15].
[13] Exhibit R2, s 501 G-Documents, G9, page 81.
[14] Ibid.
[15] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
The Applicant concedes that he does not pass the character test. He made that concession in his written material[16] and in his evidence during the hearing.
[16] Exhibit A1 Applicant’s Statement of Facts, Issues and Contentions (‘SFIC’), dated 28 August 2019, paragraph [5].
Consequently, I am satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[17] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[18]
[17] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[18] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a)    Protection of the Australian community from criminal or other serious conduct;
b)    The best interests of minor children in Australia;
c)    Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a

non-exhaustive list in paragraph 14 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;
e)    Extent of impediments if removed.
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
·Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
·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;
·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 forfeit the privilege of, staying in Australia;
·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;
·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;
·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; and
·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 for determining whether to exercise the discretion.
I will now turn to addressing these three Primary Considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to 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. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
·the nature and seriousness of the non-citizen’s conduct to date; and
·the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending can be gleaned from his criminal history which appears in a document entitled ‘Check Results Report’ from the Criminal Intelligence Commission[19]. That material discloses that between 2009 and 2018, the Applicant came before the courts for sentencing on some 18 occasions and that he was convicted of offences involving:
·Possession, supply and trafficking of illegal drugs including cannabis and methamphetamines;
·Assault occasioning actual bodily harm;
·Burglary, possession of stolen property, receiving tainted property and unlawfully taking a reward for the recovery of property;
·Public nuisance, fail to leave licensed premises, drunk and disorderly conduct, fail to comply with a direction, and obstruct or assault police; and
·Breaching parole conditions, bail conditions and a suspended sentence.
[19] Exhibit R2, s 501 G-Documents, G9.
The Nature and Seriousness of the Applicant’s Conduct to Date
Chronological Summary of the Nature of the Offending
Between 2009 and 2011, the Applicant’s offending involved obstructing or assaulting police, nuisance offences including drunk and disorderly conduct and failing to leave licensed premises, breaching a probation order imposed for driving under the influence of alcohol and unlicensed driving.[20]
[20] Ibid.
In his oral evidence before the Tribunal, the Applicant did not seem to comprehend that the nature of his abovementioned offending between 2009 and 2011 was demonstrative of a lack of respect for lawful authority, and the safety of fellow road users. One could not take any measure of comfort from his evidence that he had understood that his conduct during this phase of his offending was not the type of conduct observed by law-abiding people in Australia and that his offending had the potential to cause catastrophic harm to other road users.
The Applicant claims that he started using drugs around 2012/2013 and this is consistent with his criminal history which mostly comprises drug and property offences from 2013 onwards. The drug related offences include trafficking of methamphetamine between 9 May and 30 July 2015[21]. In relation to this offending the learned sentencing Judge said:
“Most concerning, regarding the trafficking charge, is that it occurred in the period between the 9^th of May 2015 and the 30^th July 2015, almost 3 months. The date commences five days after the previous indictable offence of the possession of the dangerous drug on the 4^th of May 2015, so you have had contact with the police over the years. You had close contact in this period, and it did not dissuade you at all, it seems, from continuing on with your conduct.
…
On the 17^th of August 2015, police obtained a stored communication warrant in relation to your telecommunications service number for the period 9 May to 17 August 2015. It was during this period that you used your mobile to arrange at least 27 supplies to various friends and customers of methamphetamine, and on occasion heroin and cannabis. That is a lot of offending in a very short period.
…
It is accepted on the facts that you were running a street-level business and supplying to end users.”[22]
[21] Exhibit R2, s 501 G-Documents, G10, page 81, and G11, page 89.
[22] Exhibit R2, s 501 G-Documents, G11, pages 89-90.
Methamphetamine is a particularly harmful drug, and it is beyond dispute that trafficking in illegal drugs has a very significant detrimental effect on the Australian community. It directly causes serious harm to individual drug users and deep anguish for those who care about them. It indirectly harms the victims of drug related crime and often results in the neglect and/or abuse of the children of drug dependant individuals. It is an unlawful trade that consumes the community’s policing, judicial and healthcare resources.
Referring to another offence for which the Applicant was sentenced at the same time as the trafficking offence, the learned sentencing Judge said:
“Of the other charges before the court, the dishonestly taking a reward charge on 2^nd September 2015 is also of concern, because it shows an ability by you to intimidate people in acting unlawfully.”[23]
[23] Ibid, page 90.
The learned Judge was referring to the Applicant demanding money from the owner of a dog that had been taken from a fenced yard in exchange for the return of the dog.[24]
[24] Exhibit R3, Records produced by Queensland Police Service, page 291.
As already stated, even after the Applicant had been granted bail with respect to the trafficking and other offences, he continued to offend, committing property and drugs offences in January and February 2018.
Cross Examination of the Applicant
At the beginning of his cross-examination, the Applicant was taken to his Statement of Facts, Issues and Contentions where he specifically agreed with the majority of the factual circumstances relating to his offending. The Applicant did not, in his oral evidence, change this position.
He was then taken to a certain letter that he had written to an individual called “Eric”. He was taken to a sentence in the letter where the Applicant told Eric “I am a normally a [sic] hard working man with 4 children and have always supported family…”. It was put to the Applicant that this sentence could surely have not been correct in circumstances where the Applicant has spent a significant majority of the last several years in either criminal custody or immigration detention and in circumstances where one of the mothers of the two children was in criminal custody and both of the mothers of the two youngest children (born in 2018) had their own problems with drug use.
He was the taken to page 345 of the summonsed material from the Queensland Department of Child Safety. The relevant passage from that page says these things:
“Tryneece [one of the mothers of the two children born in 2018] has been recently incarcerated at the Brisbane Women’s Correctional Centre…Tryneece is…eligible for release on…20 March 2018...
Tryneece and her partner (Enoka) are both currently incarcerated for drug offences and Enoka is a repeat offender having been incarcerated at Wacol previously and broken the requirements of his parole. Both parents to this unborn child have an extensive history of substance use, including $100 per day each marijuana, and $100-200 per day methamphetamines intravenously injected. Enoka is the…source of substances for himself and Tryneece, as well as Jahlia [surname redacted] whom is also pregnant and previously incarcerated… Enoka is the father of Jahlia’s unborn child as well. Tryneece…planning on allowing Jahlia to live with her and Enoka as she has little support from her family. This is of concern to Tryneece’s child as Jahlia is a known heroin user and has reportedly sought to source heroin from Enoka since her release from BWCC earlier this year.”

It was put to the Applicant that having regard to the above, it could be reasonably said that as at March 2018, he was expecting the birth of two children from two different mothers both of whom had drug problems and to both of whom he was supplying drugs. The Applicant unconvincingly denied this suggestion.
He gave a likewise unconvincing response to the suggestion that despite what he told “Eric”, he was not in reality a hard-working man who always supported his family.
The Applicant conceded that he has never met or seen the child he has had with Tryneece who was born in 2018. He likewise conceded that he has never met or seen the child he had with Jahlia, who’s child was also born in 2018.
He was asked about his two older children who are aged 9 and 6 respectively. He was not able to recall the specific date or year when he last saw them before his most recent removal from the Australian community in 2018. The best he could say was that before being removed from the community in 2018 he “…would have seen them…”. He also said that there was a stage in the past where he saw his two eldest children on a recurring basis of “…once a month over a period of about two years.”
The Applicant was referred to the document he had filed in these proceedings bearing the title “Submissions”[25]. He conceded that he had received some help from a third party or parties with preparation of this document but despite that, he nevertheless contended that the details of this document were all correct.
[25] Exhibit A3.
He was challenged about that contention in several ways. First he was taken to paragraph 26 of that document which reads as follows “The Applicant submits to the Tribunal that he strayed from his normal, honest, hardworking and law abiding path for a brief period, whilst he offended”. He was challenged about the reference to his offending being for only a “brief period”. It was put to him that his offending did not occur over a brief period and that it ran for almost a decade. He had no convincing response to that suggestion.
He was then taken to paragraph 52 of this “Submissions” document which suggested that “the Applicant has a partner.” He was questioned about the truthfulness of such a statement and unconvincingly replied that a lady by the name of “Sera” who is the mother of the two eldest children was, in the past, his wife and that they spent a period of time living together. He said that she caught him using drugs in or about 2012/2013 and, because of that, she had taken the children and left him. He conceded that they had at no time recommenced their relationship and that the best he could say about his relationship with Sera was “…we’re just talking about our future”.
He was also asked to explain an inconsistency in this particular “Submissions” document where it is said that his offending involved none of the following: “violence, violence against women, violence against the vulnerable”. He conceded that the references to “no violence” and “no violence against women” in this “Submissions” document were plainly wrong.
He did not seem to understand what was intended behind the suggestion in the “Submissions” that his offending did not involve any offending “against the vulnerable”. It was put to him that consciously and knowingly supplying drugs to people who are dependent on them is taking advantage of people who are vulnerable. His tepid response was “I don’t know”.
He was taken to page 17 of this “Submissions” document which purports to talk about whatever relationship he may have with his children. Page 17 contains these statements:
“The Applicant’s relationship with all his children is parental. There are no court orders” and
“The Applicant has always and will continue to play a positive role in their upbringing. There are no court orders relating to the Applicant”
It became clearly apparent that the Applicant was either not aware that the above words appeared in the “Submissions” document or, alternatively, simply did not understand those words. He could not for example, at all, explain what was meant to be conveyed by use of the word “parental” in the abovementioned portions of the document. He conceded that he did not really know what these quoted portions actually meant and he accepted that he had played a minimal parental role in the lives of the four children.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members if 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, are serious;
d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)…;
i)…
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. The Applicant’s criminal history includes violent offending. In 2012, the Applicant was convicted of assault occasioning actual bodily harm arising from an incident in which he “without warning punched the victim once to the jaw with his right fist” which resulted in the victim losing consciousness, hitting his head on the ground and suffering a laceration to his head.[26] This type of attack is disturbingly similar to “one punch” or “coward punch” attacks that, in very unfortunate cases, result in the death of the victim. Attacks of this kind clearly attract the adverse application of this subparagraph (a). They can also have potentially catastrophic outcomes. I am of the view that the clearly reckless circumstances of this offending must, for the purposes of this subparagraph (a) be viewed very seriously.
[26] Exhibit R3, Records produced by Western Australian Police, page 1679.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction stipulates that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. There is evidence in the material of the Applicant committing an act of domestic violence. On 23 August 2017, as is made clear in the relevant Queensland Police Service Court Brief, the Applicant was involved in a domestic violence incident wherein several witnesses stated that they saw the victim being punched several times by a male whom those witnesses identified as the Applicant. This conduct resulted in the making of an application for a Domestic Violence Order. To be fair to the Applicant, it is not immediately apparent from his criminal history that he has at any time breached such an order[27]. Nor is it apparent that he was convicted of the alleged assault however I am satisfied of the veracity of what appears in the relevant material that describes the conduct.
[27] The Applicant was actually convicted of “contravention of release conditions” under the Domestic and Family Violence Protection Act 2012 (Qld) on 13 January 2014 – he was fined $100 and conviction recorded: see Exhibit R2, s 501 G Documents, G9, page 84.
Thus, while it does not appear that a sentence was imposed for the conduct, this type of violent conduct towards women necessarily attracts a measure of weight pursuant to this sub-paragraph (b) in favour of a finding that it is very serious.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction stipulates that crimes committed against vulnerable members of the community are serious. This sub-paragraph usually has application in circumstances where the offending has been perpetrated against either the very young or the elderly. At the hearing, it was fairly put to the Applicant that he took advantage of vulnerable people in the form of the two different mothers of the two children born in 2018. He did so by knowingly and deliberately supplying drugs to these women whom he knew already had serious addiction problems with drugs.
This sub-paragraph (c) also has relevant application when one has regard to the Applicant’s offending history involving the assault or obstruction of a police officer in the course of his/her duty. The Applicant has been convicted of this type of offending in 2009 (twice), 2011 (twice) and 2018 (twice). This type of offending can only be construed as a direct physical challenge to the lawful authority governing and protecting the community to which this Applicant now seeks to be returned. His offending against the vulnerable and drug addicted mothers of his two youngest children and his direct and physical challenge to the lawful authority represented by police officers attracts application of this sub-paragraph (c) in favour of a finding that his offending has been very serious.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) above) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. As is well known, the imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. Custodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence committed by an Applicant. The cumulative total of custodial terms imposed on the Applicant clearly militates in favour of a finding that his offending to date has been very serious.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required in an application of the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of offending is usually analogous to the regime of sentencing imposed for it.
First, with reference to the frequency of his offending, the Applicant’s criminal history discloses the he has found himself before lawful authority as a result of his offending on at least 18 occasions between 2009 and July 2018. Approximately 72 individual offences were dealt with by the sentencing courts on these 18 sentencing occasions. There is no other finding than that the Applicant’s conduct has clearly been of a frequent nature.
Second, his criminal history demonstrates a clearly increasing trajectory in its seriousness. While his offending during its formative years (2009-2014) may be said to involve perhaps a less serious level of offending, the level of seriousness assumes a significantly greater severity from 2015 onwards. In 2015 he committed, amongst other serious offences, the drug trafficking offence for which he was sentenced in 2018 to a custodial term of four and a half years. There is a clearly detectable trend in the seriousness of this Applicant’s criminal conduct. Its trajectory of seriousness cannot be understood in any other way.
Thus, an application of this subparagraph (e) leads to an inevitable finding that both the frequency of the Applicant’s offending and its increasing severity is such as to attract a finding that it has been of a very serious nature.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. To my mind, there are three detectable themes arising from a longitudinal understanding of the Applicant’s criminal history.
First, despite receiving the benefit of, initially, non-custodial terms, he has failed to experience any insight and/or resulting deterrent effect such that his offending either ceases or remains at a low level of seriousness. Second, he does not respect the lawful authority governing the community to which he seeks to be returned. He has multiple convictions for obstructing and assaulting police officers[28]. He has multiple convictions for breaching the terms of accommodating orders such as bail and similar orders compelling him to do something.
[28] “assault or obstruct” being the way the offence is framed.
Third, and this is perhaps the most concerning and serious effect resulting from the totality of his criminal history, it is clear that either via his unresolved issues with illicit drugs or for some other reason, he has yielded to the lure of deriving his living from the drug trade. From 2017 onwards his offending had overwhelmingly involved drug offences. Those offences unquestionably point to him as (1) a willing participant in a culture of consuming such drugs and (2) a willing participant in its commercial aspects, culminating in his conviction for trafficking in those unlawful drugs.
The cumulative effect of the nature and extent of the Applicant’s repeated offending attracts application of this subparagraph (f) in favour of a finding that his offending has been of a very serious nature.
Sub-paragraph (g) of paragraph 13.1.1 of the Direction points a decision maker to an enquiry of whether the non-citizen has provided false or misleading information to the Department including by not disclosing prior criminal offending. The material discloses an incoming passenger card[29] incorrectly dated by the Applicant with his date of birth. There is also a half-missing stamp on the front page of this card which does not definitively date it. On its second page, in the bottom right hand corner, there is a proprietorial reference to “© Commonwealth of Australia 2011…(Design date 11/11)”. Consistent with the delegate’s findings in the decision under review, I find that the most proximate time after 2011 on which the Applicant re-entered Australia was 2 June 2012.
[29] Exhibit R2 s 501 G-Documents, G131, page 131.
It is therefore reasonable to conclude that this incoming passenger card was falsely completed by the Applicant upon his re-entry on that date. It was false because in the card, the Applicant was asked the following question “Do you have any criminal conviction/s?” and his response was “No”. By 2 June 2012, the Applicant had appeared before lawful authority for sentencing on at least four occasions involving the commission of ten offences.
In my view, the Applicant’s conduct in providing false and misleading information about his criminal offending in the subject incoming passenger card attracts the application of this sub-paragraph (g) in favour of a finding that his conduct is of a very serious nature.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (c), (d), (e), (f) and (g) of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s conduct is readily capable of characterisation as “very serious”.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)Paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)Paragraph 13.1.2(1)(b) requires me to consider 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 reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The Respondent contends that the nature of harm that would be occasioned to the Australian community were the Applicant to re-offend would be very serious and likely to involve physical, psychological and financial harm to potential victims[30]. I agree with that contention.
[30] Exhibit R3, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 11, paragraph [38].
The assessment of the nature of harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is, to my mind, properly informed by the nature of his offending apparent from his criminal history to date. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
Given his unresolved issues with illicit drugs, and having regard to the nature of offending apparent in his criminal history, it would be reasonable to conclude that his future conduct is therefore unknown and unpredictable. His involvement with unlawful drugs has caused him to be incapable of distinguishing between right and wrong. This has caused his behaviour to be both unpredictable and unregulated. He has not developed boundaries of respect for the lawful authority represented by the police nor for the rights of other people in the community, most notably women and vulnerable people.
It is therefore reasonable to find that the potential consequences flowing from further similar or identical offending by this Applicant would be very serious. Were he to re-offend, particularly in the realm of unlawful drugs, I am of the view that its effect on a member or members of the Australian community would be very serious indeed and with, quite conceivably, potentially catastrophic consequences.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s history of offending is both lengthy and voluminous. Sentencing authorities have resorted to the imposition of progressively more serious sentences as the criminal history has evolved. There is nothing in the criminal history to demonstrate the Applicant has experienced any form of deterrent effect such as to result in him ceasing his offending.
It is not a stretch to conclude that the abuse of illicit drugs and a significant involvement in the commercial aspects of the drug trade have come to dominate this Applicant’s life. At a domestic level, while he may say he shares respective biological children, both born in 2018, with two different mothers, it is the drugs, not the parental requirements of the children that have dominated whatever relationship he may have had with those two women. Likewise, in terms of career choices and engagement in remunerative employment, the Applicant has made his choice: trafficking in unlawful drugs is how he tries to make money. The net result of this has been (1) an increase in the level of seriousness of his offending, and (2) a more than convincing risk of him returning to unlawful drugs as a means of earning a living and otherwise feeding his unresolved problems with those substances.
He speaks of having completed certain programs and/or courses and he claims to be a reformed person who is now of good character. While there may be evidence of him completing those courses, there is no clear evidence of how they may have changed his preponderance towards offending, especially in the realm of unlawful drugs. Of more concern is the reality that his suggestion of being a changed man has not been tested in the community. Also of concern is the reality that although he may have completed a course about domestic violence, there is nothing in the material to convince me he has completed any courses directed to resolving his issues with unlawful drugs. Further, while the Applicant claims to have been drug-free since his incarceration, he has been in a highly controlled and supervised environment in either criminal custody or immigration detention. This is very different to him being at large in the Australian community. It is therefore difficult for me to have any measure of confidence that he will remain drug-free if returned to the community.

The Applicant’s most recent sentencing episode on 24 July 2018 related to property and drugs offences that the Applicant committed in January and February 2018 while he was on bail (in relation to the offending for which he was dealt with on 20 March 2018) and while, at the same time, he was serving a suspended sentence.[31]
[31] Exhibit R2, s 501 G-Documents, G9.
I am mindful of the comments made by a previous sitting President of this Tribunal, His Honour Justice Davies, who said the following about the risk of reoffending:
“The likelihood of recidivism is a strong factor in favour of the deportation when the Tribunal is not satisfied that the criminal is unlikely to offed again…and even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.”[32]
[32] Stone and Minister for Immigration & Ethnic Affairs (1981) 3 ALN 81.
Conclusion: Primary Consideration A
This Applicant has been given multiple opportunities to modify and ameliorate his conduct. He has failed to grasp those opportunities and, instead, has continued to persistently offend, and very seriously so.
I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and have also had regard to subparagraph 6.3(3). I find that (1) the nature of the Applicant’s offending conduct to date is very serious and (2) there is a strong and convincing likelihood that he will engage in further very serious conduct if returned to the Australian community.
In consideration of all of the evidence and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs very heavily in favour of non-revocation.
Primary Consideration B: The Best Interests of Minor Children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Applicant claims to have four minor children[33], being:
·[Child 1], aged nine, born in 2009 whose mother is Sera;
·[Child 2], aged six, born in 2013 whose mother is Sera:
·[Child 3], aged one, born in 2018 whose mother is Jahlia[34]; and
·[Child 4], aged approximately one, born in 2018 whose mother is Tryneece[35].
The Applicant’s Evidence
[33] Note: for the purposes of these reasons the specific date of birth of each child is not recorded (only the year of birth), the name of each child is replaced by a number, and only the first name of the mother of each child is recorded.
[34] Children 1 – 3 are listed on the Applicant’s Personal Circumstances Form, s 501 G-Documents, G17, page 108.
[35] Ibid, page 111, and Department of Child Safety, Youth and Women’s records, page 582.
As was seen from the Applicant’s evidence in cross-examination, he accepted that any parental role he has played in the children’s lives to date has been minimal. It is not clear from the evidence whether the Applicant is maintaining any sort of relationship with any one of the three mothers of his four minor children.
With reference to Child 1, the Applicant said in his Personal Circumstances Form “I was at [Child 1’s] birth. I spent 8 years with Sera, and we raised her together for 6 years. I would see [Child 1] and Sera now and then”. [36]
[36] Exhibit R2, s 501 G-Documents, G17, page 109.
With reference to Child 2, the Applicant said “I was at [Child 2’s] birth. I spent 8 years with Sera, and we raised him together for 2 years. I would see [Child 2], [Child 1] and Sera now and then…I support [Child 1] and [Child 2] and give Sera money whenever I can help feed and clothe them”. [37]
[37] Ibid.
With reference to [Child 3], the Applicant said in in his Personal Circumstances Form “I bought everything for [Child 3] before she was born, but our relationship ended just before [Child 3] was born. [Child 3] was born after I was arrested”. [38]
[38] Ibid.
The Applicant’s Personal Circumstances Form was written prior to the birth of [Child 4] and makes no mention of any parental relationship between him and [Child 4]. However, in response to a question about the impact that non-revocation would have on the children, the Applicant said this:
“If my visa is cancelled I would not be able to be involved in raising my children. They would lose their father and the father figure in their life. I would not be there for all of lifes [sic] milestones like birthdays weddings and the birth of their children. I would be distraugh [sic] and devastated if I could not be involved in their upbringing and I was not able to support my children”.[39]
Other Evidence in Relation to the Children
[39] Ibid.
[Child 1] and [Child 2] both live with their mother and, as will be noted from a review of her evidence, the mother of these two children ceased any contact between them and the Applicant in 2016. In relation to [Child 3] – the first of the two children born in 2018 – this child was born after the Applicant’s incarceration and also after the end of the Applicant’s relationship with that child’s mother. There is no evidence that he maintains any measure of a relationship with [Child 3] and it is difficult to see that situation changing in the medium term given that there is evidence in the material that [Child 3’s] mother has taken out a Domestic Violence Order against the Applicant.[40]
[40] Ibid, G33, page 147.
Similarly, there is scant evidence of any parental relationship between the Applicant and [Child 4]. Concerningly, the Applicant told the Department of Child Safety, Youth and Women that he was not even sure he was [Child 4’s] father and that he was looking to challenge his paternity of that child.[41] The care arrangements for [Child 4] appear to be the responsibility of the sister of the mother of [Child 4]. This is because the mother of [Child 4] has ongoing issues with drugs.[42]
The Evidence of the mother of Children 1 and 2 – “Sera”
[41] Exhibit R3, Records from the Department of Child Safety, Youth and Women, page 582.
[42] Ibid, and Exhibit R2, s 501 G-Documents, G33, page 146.
Sera provided both a written statement[43] as well as oral evidence (in person) at the hearing. She confirmed she is the primary carer of both children 1 and 2. She said she last saw the Applicant “…in about 2016…”. Prior to 2016, and after their separation, she said that the Applicant would have seen her and Children 1 and 2 approximately “twice a week”. She said that she stopped all contact between the Applicant and the two children in 2016.
[43] Exhibit A4 – letter of support from Sera [surname redacted] dated 2 September 2019.
According to her evidence this stoppage was due to the Applicant’s unresolved issues with unlawful drugs. She agreed that at times the Applicant was a “great father” but in terms of him overcoming his drug issues she was “…not certain about whether things will get better...” in that regard. She said the Applicant has to “…get to a point in his life where he says ‘enough is enough…’ and he manages to deal with his drug issues. It was clear from her evidence that Sera does not think that the Applicant was anywhere near that point.
Application of Factors in Paragraph 13.2(4) of the Direction
Paragraph 13.2(4) of the Direction provides a list of factors to be considered in determining the best interests of the abovementioned children. Those factors relevantly comprise for present purposes:
(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.
Subparagraph (a) of paragraph 13.2(4) of the Direction refers to the nature and duration of the relationship between the child and the non-citizen. As a general proposition, less weight should be given to this factor where there have been long periods of absence or limited meaningful contact between the Applicant and the children.
The Applicant’s long periods of absence and his limited meaningful contact with children 1 and 2 means that he has played little or no parental role in the lives of those two children since at least 2016. As mentioned by their mother, she cut off all contact between the Applicant and children 1 and 2 in 2016. With reference to children 3 and 4 born in 2018, the state of the evidence is that the Applicant has not even seen or met either of those children. He has had absolutely no contact with either of them. As well, one of those two mothers has obtained a domestic violence protection order against him.
Given the long periods of absence of the Applicant from the lives of children 1 and 2, and given his complete unfamiliarity to children 3 and 4, there cannot be a finding that the nature and duration of any relationship between the Applicant and the children militates in favour of restoring his migration status to him.
Sub-paragraph (b) of paragraph 13.2(4) of the Direction requires a decision maker to make an assessment of the extent to which the Applicant is likely to play a parental role in the future, taking into account the length of time there is until the child turns 18. Any application of this sub-paragraph (b) is informed by the extent to which the Applicant has played any such role to date.
The Applicant has, on any reasonable estimate, spent the entirety of the lives of children 3 and 4 in one form of custody or another. With reference to children 1 and 2, his incarceration has caused him to be absent from them for approximately one third to one half of their lives. In addition, their mother cut off contact in 2016. Whatever role he may have played in the lives of children 1 and 2 prior to cessation of contact in 2016 may – only to a slight extent – militate in favour of a finding that a slight measure of weight can be attributed to this sub-paragraph (b) on the basis that it would be in the best interests of the four children for his migration status to be restored to him.
In addition, there is the element of the significant period of cumulative time until each of the children turn 18. There is something like 55 years of cumulative parenting time until each of the four children attain the age of 18 years.
Sub-paragraph (c) of paragraph 13.2(4) of the Direction involves an assessment of any negative impact of the Applicant’s prior conduct, and any likely future conduct, on his four minor children in Australia. The Applicant speaks of certain adverse impacts on his minor children were he to be removed. This is his evidence only and there is nothing else in the material from either a lay or expert witness to corroborate any such adverse impact or impacts. It cannot be denied that his removal from Australia would, to an extent yet to be measured, adversely impact the four children. The only reasonable finding for present purposes is that this sub-paragraph (c) merits a slight allocation of weight in favour of a finding that restoration of the Applicant’s visa status to remain in this country is in the best interests of his four children.
Sub-paragraph (d) of paragraph 13.2(4) of the Direction refers to an assessment of the likely effect that any separation of the four minor Australian children from the Applicant would have on them, taking into account the Applicant’s ability to maintain contact in other ways. There are two aspects as to how this factor can be discussed. Although slight reference was made by the mother of children 1 and 2 about the good quality of the Applicant’s parenting when he was not involved in drugs, it should also be noted that she has cut off all contact between him and those children due to his drug issues.
Were he to be removed, the Applicant would return to New Zealand. In that country, he would be able to avail himself of electronic communication and he would potentially be able to communicate with his minor children in Australia by SMS and/or social media platforms. It is clear, therefore, that the Applicant would be able to maintain contact with the children in ways other than personal contact. Accordingly, this sub-paragraph (d) is of neutral weight in assessing whether return of the Applicant’s visa would be in the best interests of the four minor children.
Sub-paragraph (e) of paragraph 13.2(4) of the Direction asks whether there are other persons who already fulfil a parental role in relation to the children. Clearly, there are. Despite what he many have said in the Personal Circumstances Form, it is clear that:
·Children 1 and 2 are primarily parented by their mother, Sera;
·[Child 3] is primarily parented by her mother who is unlikely to promote any parental role by the Applicant in circumstances where she has sought Domestic Violence Protection from him;
·[Child 4] appears to be in the care of that child’s aunt due to the child’s mother’s drug issues. There is no evidence that the Department of Child Safety, Youth and Women has ever contemplated the allocation of partial or sole care of [Child 4] to the Applicant upon his release from custody or detention; and
·There are no Family Court orders or parenting plan between the Applicant and any of the three mothers recording any parenting rights he may have in relation to any of the four children.
Having regard to the combined evidence of the Applicant and the mother of children 1 and 2, this sub-paragraph (e) is, at best, of slight weight in favour of the Applicant in assessing whether restoration of his visa status is in the best interests of his four minor children in Australia.
Sub-paragraph (f) of paragraph 13.2(4) of the Direction requires the Tribunal to consider any known views of the children about their separation from the Applicant, having regard to their age and maturity. As already alluded to, there is no independent or expert evidence before the Tribunal that any of the four minor children are exhibiting behaviours indicative of adverse views they may have regarding the physical removal of their father from their lives. With particular reference to Children 3 and 4, it is difficult to conceive of any such reliable evidence given those children are each approximately one year old.
Accordingly, no measure of weight can be allocated to this sub-paragraph (f) in circumstances where the views of none of the four minor children are known and where there is nothing to suggest that the prolonged, physical absence of their father from their lives thus far or in future has had, or will have, any adverse impact on them.
Sub-paragraph (g) of paragraph 13.2(4) of the Direction looks to evidence that the Applicant has abused or neglected the children in any way, including physical, sexual, and/or mental abuse or neglect. There is no such evidence in the material. This factor has no weight and is not determinative of any finding about Primary Consideration B.
Sub-paragraph (h) of paragraph 13.2(4) of the Direction looks for evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. There is no independent evidence of any such trauma suffered by the two eldest children, children 1 and 2. Children 3 and 4 are simply too young to be able to relay any reliable information about any such emotional trauma.
I am of the view that this sub-paragraph (h) – in the absence of any independent and expert evidence about any physical or emotional trauma suffered by children 1 and 2 as a result of the Applicant’s offending conduct during their lives, is of no weight and is not determinative of any finding about this Primary Consideration B.
Conclusion: Primary Consideration B
Having regard to:
·the evidence of the Applicant in his Personal Circumstances Form which propounds either a prior but now discontinued, or otherwise largely uninvolved and uncommitted, parental relationship with the four minor children;
·the evidence of the mother of children 1 and 2 – particularly that the Applicant’s unresolved issues with drugs have caused her to cease all contact between the Applicant and the children since 2016;
·the evidence around the mothers of children 3 and 4 which, on any reasonable view, demonstrates the Applicant’s almost complete lack of parental involvement in the lives of those two children and the unlikely prospect that this position will change in the foreseeable future;
·the reality that the Applicant has never met children 3 or 4 and has been physically absent from the lives of children 1 and 2 for at least three years, representing between one third to one half of the lives of those two children thus far;
·the reality that each of the four children are primarily parented by other people and that any future parental role between the Applicant and each of the four children can be conducted via electronic (and associated) means;
·the complete absence of any independent or expert evidence about the adverse impact upon children 1 and 2 as a result of the Applicant’s physical absence from their lives thus far;
·the slight level of weight I have attributed to factors (b), (c), and (e) of paragraph 13.2(4) of the Direction;
- I am of the view that the best interests of the Applicant’s four minor children in Australia is a factor that does weigh slightly in favour of revocation of the decision to cancel the subject visa. I qualify this finding by saying the weight attributable to this Primary Consideration B is of a slight level and does not, in any way, outweigh the very heavy weight I have attributed to Primary Consideration A.
Primary Consideration C – The Expectations of the Australian Community
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1)[44] of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to (1) the Government’s views in this respect and (2) any overarching principles and guidance provided by the Direction.[45] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that he/she should not hold a visa.
[44] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.
[45] See the Direction, paragraphs 6.2(1) and 6.3(1)-(7).
Factual circumstances relevant to this Primary Consideration C

In assessing the weight attributable to this Primary Consideration C, it is necessary to have regard to the following circumstances arising from this matter’s factual matrix:
·the Applicant arrived in Australia in 2006 as a 21 year old. He is now 34 years of age;
·he has four minor children in Australia but is estranged from them and their respective mothers;
·he first offended in 2009, some three years after his arrival;
·he received the benefit of non-custodial sentences from April 2009 until December 2017;
·his offending has seen him before lawful authority in this country on approximately 18 separate occasions between April 2009 and July 2018 involving some 72 offences;
·his offending has been both frequent and very serious. His offending has culminated in very serious drug trafficking, supply and possession offences which have the potential of seriously affecting, and even catastrophically affecting a significant portion of the Australian community;
·his offending derives from unresolved issues with unlawful drugs. Without the benefit of any independent expert evidence, those unresolved issues can be (inexpertly) stated as: (1) a predisposition towards abusing unlawful drugs; and (2) a resulting predisposition towards offending in the realm of unlawful drugs as well as (3) a predisposition towards refusing to respect lawful authority and the personal ad property rights of others;
·he has failed to experience any deterrent effect from the graduated sentencing process he has undergone.;
·his offending has seen him removed from the Australian community on a continuous basis, be it in the form of criminal custody or immigration detention, since approximately early 2018;
·for the totality of his offending in this country, the sentencing courts have seen fit to impose total cumulative custodial terms amounting to approximately five years and nine months. In round terms, the Applicant’s offending has been punished by a cumulative period of custodial that equate to approximately half of the time he has spent in this country;
·the Applicant’s evidence about rehabilitation, put at its highest, is that he is yet to undergo anything remotely approaching rehabilitative care, management and control of his substance abuse issues. In these circumstances, the Tribunal cannot be reasonably expected to form any definitive view about the Applicant’s risk of reoffending other than it remains as it was prior to his most recent removal from the Australian community in early 2018;
·there is no definitive, independent or expert evidence before the Tribunal:
(i)providing any diagnosis of psychological or other factors predisposing the Applicant to abuse unlawful drugs and to offend in a very serious way;
(ii)that those factors have been identified and are now the subject of an externally imposed and monitored regime of remedial therapy, treatment and management;
(iii)that the Applicant has demonstrated any convincing level of insight into his offending, so that
(iv)this Tribunal can confidently find there is either no real risk of him re-offending, or that his risk of re-offending is low.
The Evolution of the Australian Community’s “Expectations”
I am mindful of the elements necessary to be balanced in any proper consideration and application of Primary Consideration C to the present factual matrix. Since the early 2000s, courts and tribunals have been defining formulae to assist a decision-maker in reaching a decision that accords with the expectations of the Australian community.
As a general proposition, Deputy President Block, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[46]
[46] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[47] The learned Deputy President thought this paragraph leads a decision-maker to:
102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgment, the facts on which that judgment is made must be on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.
[My underlining]
[47] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection:[48]
In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.
[My underlining]
[48] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…
[My underlining]
In Afu v Minister for Home Affairs,[49] Justice Bromwich said:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.
[My underlining]
[49] [2018] FCA 1311 at [85].
In FYBR v Minister for Home Affairs[50], Justice Perry observed that:
“It follows, in line with the authorities, that cl 11.3 of Direction 65[51] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...” [52]
[My underlining]
[50] [2019] FCA 500 (“FYBR”).
[51] Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[52] FYBR, paragraph [42] (Perry J).
FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian Community: see FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:
(a)The ‘expectations of the Australian community’ cannot be measured or determined as if it is a provable fact. It is an assessment of community values made on behalf of that community.[53]
(b)The Tribunal cannot determine for itself what such ‘expectations’ are by reference to the Applicant’s circumstances or evidence about those expectations;[54]
(c)The Government’s view in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the government thinks is the ‘expectations of the Australian community’, and the Tribunal should have due regard of that statement, if made;[55]
(d)In assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles appearing in paragraph 6.3 of the Direction, in particular subparagraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[56]
[53] Afu at paragraph [85].
[54] FYBR at paragraph [42]
[55] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[56] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration C
The can be no doubt that the Applicant has breached the expectations of the Australian community as he has failed to abide by the law. Thus, for the purposes of ascertaining the level of attributable weight to this Primary Consideration C, I take into account the following factors:
(i)the Applicant has made little to no positive contributions to the Australian community;[57]
(ii)the Applicant has lived in Australia for approximately 13 years;[58]
(iii)the removal of the Applicant would have an adverse impact the four minor infant children and his immediate family in Australia.[59]
(iv)the very serious nature of the Applicant’s offending to date to inter alia women and vulnerable people;
(v)the nature of the balance of his offending history involving, as it does, a lack of respect for lawful authority and the personal and property rights of others, the dreadfully adverse effect of unlawful drugs upon the Australian community, both in terms of individual harm and in terms of the community’s resources that it consumes;
(vi)his lack of insight into the severity of what he has done and my finding of a convincing likelihood that he will engage in further and, most likely, very serious conduct if returned to the Australian community;
(vii)my assessment of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to re-offend; and
(viii)the comments in recent judicial decisions about how a decision-maker applies paragraph 13.3(1) of the Direction.
[57] The Direction, paragraph 6.3(7).
[58] Ibid, paragraph 6.3(5).
[59] Ibid, paragraph 6.3(7).
Conclusion: Primary Consideration C
I am of the view that the above factors, read as a whole in the context of this case, militate in favour of not revoking the cancellation of the Applicant’s visa. I accordingly find that this Primary Consideration C is of heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I have considered each of the five stipulated subparagraphs (a), (b), (c), (d) and (e). I address each in turn.
(a) International non-refoulement obligations
The Applicant has not claimed to fear harm, and none of the evidence suggests a risk of harm, should he be returned to New Zealand. This consideration is not relevant to the determination of the application.
(b) Strength, nature and duration of ties
There is a readily made concession by the Respondent that:
“Although this consideration weights slightly in favour of revoking the cancellation, it does not outweigh the primary considerations.”[60]
[60] Exhibit R1, Respondent’s SFIC, page 16, paragraph [58].
In his Personal Circumstances Form,[61] the Applicant makes reference to his uncle, aunt and five cousins residing in Australia. In terms of other close family members, he makes reference to “numerous extended family” and two uncles/aunts. His mother, father (apparently now deceased), his five sisters and one brother all reside in Samoa. He says that he has twenty “uncles/aunts”, 18 “nieces/nephews” and 29 cousins living outside Australia, presumably in Samoa. It is reasonable to attribute some measure of weight to this Other Consideration (b) on the basis the Applicant has an uncle/aunt and five cousins in Australia. It cannot be put any higher than that because his immediate family all reside in Samoa.
[61] Exhibit R2, s 501 G Documents, G17.
The Applicant has an employment history in Australia. He worked relatively consistently from 2009 to 2013 and then intermittently after 2013. He gave evidence at the hearing that he would be able to return to factory (or similar) work were he to be returned to the Australian community.
I have had regard to the various letters of support and similar supportive documents appearing in the material.[62] While the comments in this material are supportive, this support has not stopped him from seriously offending in this country.
[62] Ibid, G20.
It is clear there is a measure of strength in the Applicant’s ties to Australia. Consistent with Paragraph 14.2(1)(b) of the Direction, those ties, and thus this Other Consideration (b), favours revocation and the Applicant.
That observation must be tempered by the factors appearing at paragraph 14.2(1)(a) of the Direction. With specific reference to paragraph 14.2(1)(a)(i) of the Direction, although the Applicant first arrived here as a 21 year old, he began offending some three years later as a 24 year old and his offending history spans virtually the entirety of his adult life in Australia. It can be said the Applicant began offending relatively soon after his arrival in Australia and it is thus difficult to allocate any measure of weight in favour of the Applicant via paragraph 14.2(1)(a)(i) in favour of the Applicant.
With specific reference to paragraph 14.2(1)(a)(ii), it is possible to allocate a slight measure of additional weight to this Other Consideration (b) given the Applicant’s contributions to the Australian community. When asked to list the positive contributions he has made to Australia, he said that he has worked as a “volunteer for flood recovery in Brisbane…Mud Army”. He added that, if removed, “My friends, church member [sic] and the broader community would be sad and miss me, I would not be able to participate in church and community activities of [sic] volunteer in the future.” Accordingly, application of paragraph 14.2(1)(a)(ii) facilitates the allocation of a slight measure of weight to this Other Consideration (b) in favour of the Applicant.
In the final analysis, any weight attributable to this Other Consideration (b) due to the Applicant’s family ties in this country must be tempered by respective ancillary findings that any time he may be said to have spent contributing positively to the Australian community has been significantly outweighed by his very serious criminal conduct during the corresponding period.
Accordingly, while this Other Consideration (b) may weigh in favour of revocation, it is of limited weight only and is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
There is no evidence before me that the cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application.
(d) Impact on victims
The Respondent has not called any evidence relating to the impact that the Applicant’s continued presence in Australia would have on his victim(s). Without such evidence, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact this would have on any victim(s).
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include: (a) the non-citizen’s age and health; (b) whether there are any substantial language or cultural barriers; and (c) any social, medical and/or economic support available to that non-citizen in that country.
With specific reference to the three factors appearing in paragraph 14.5(1) of the Direction, I note the Applicant is a man of 34 years of age. In terms of diagnosed medical or psychological conditions, the Applicant says he has been diagnosed with schizophrenia for which he receives a “monthly injection” from “Doctor James at Fortitude Valley Mental Health”. He is unsure of the name of the medication administered to him for the asserted diagnosis of schizophrenia. Be that as it may, the asserted condition would be able to be managed with the assistance of prescribed medication which should be available to the Applicant in New Zealand.
There are no significant or substantial language or cultural barriers to the Applicant’s return and re-establishment in New Zealand. As a citizen of that country, he will have access to social, medical and/or economic support in the context of what is generally available to other citizens of New Zealand.
New Zealand is culturally and linguistically similar to Australia. It cannot be said the Applicant will face significant linguistic or cultural barriers were he to be compelled to return there. To the extent that he may face some difficulty in re-establishing himself in New Zealand, this would only present as a short term hardship and would not preclude resettlement[63].
[63] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
I are thus of the view that this Other Consideration (e) is of neutral weight to the determination of this application.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which weigh heavily in favour of non-revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·International non-refoulement obligations: not relevant.
·Strength nature and duration of ties: is of limited weight in favour of revocation.
·Impact on Australian business interests: not relevant.
·Impact on victims: not relevant.
·Extent of impediments if removed: is of neutral weight.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?

Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs very heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B weighs slightly in favour of revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, even when combined with each other or with Primary Consideration B, outweigh the very significant weight I have attributed to Primary Considerations A and C; and
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 141 (one hundred and forty one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

.............................[SGD]...........................................
Associate
Dated: 30 October 2019

Date(s) of hearing: 16 October 2019

Applicant: Appeared via videolink

Solicitors for the Respondent: Mr Ben Dube (Solicitor)

Sparke Helmore Lawyers

[2019] AATA 4423

30 October 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	16 October 2019
Applicant:	Appeared via videolink
Solicitors for the Respondent:	Mr Ben Dube (Solicitor)
Sparke Helmore Lawyers