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

Wilson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 122 (5 February 2020)
Division:GENERAL DIVISION
File Number(s): 2019/7609
Re:Thomas Wilson
APPLICANT

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

DECISION
Tribunal:Senior Member Damien O'Donovan
Date:5 February 2020
Place:Sydney

The decision of the Respondent made on 13 November 2019 is set aside. In substitution, the decision to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked.
............................[SGD]............................................
Senior Member Damien O'Donovan
CATCHWORDS
MIGRATION – non-revocation of mandatory cancellation of visa – where visa was cancelled under s 501(3A) because applicant did not pass the character test - substantial criminal record under s 501(7) – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No 79 – risk of re-offending – the protection and expectations of Australian community – minor children – strength nature and duration of ties – impediments to applicant if removed – risk from criminal gangs if returned to New Zealand – decision under review set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501, 501CA
CASES
Brown v Minister for Immigration and Citizenship [2010] FCAFC 33
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIALS
Convention on the Rights of the Child, opened for signature on 20 November 1989, (entered in to force 2 September 1990) art 4
Migration Act 1958 – Direction under section 499 – Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (instrument made 20 December 2018, commenced 28 February 2019)
REASONS FOR DECISION
Senior Member Damien O'Donovan
5 February 2020
INTRODUCTION

The applicant was born in New Zealand in 1975. He arrived in Australia for the first time on 6 November 1992.[1] He was convicted of his first criminal offence in Australia in April 1994.[2] In March 1996 he left Australia and returned to New Zealand[3] where he committed a number of further offences.[4] On 29 August 2000, aged 24, the applicant returned to Australia.[5] He has not departed since. Soon after his return to Australia the applicant met his wife. They married on 23 March 2002.[6] They have three daughters aged 18, 15 and 8.
[1] G26, folio 166.
[2] G3, folio36.
[3] G26, folio 166.
[4] G23, folio 153.
[5] G26, folio 166.
[6] G7, folio 70 (with dates clarified in oral evidence).
In the first 13 years after his return to Australia in 2000, the applicant enjoyed a stable period of employment during which he supported his family. In this period he used illegal drugs for both recreation and to assist him to work longer hours. Eventually his drug use got out of control and his wife left him, taking the children. At the beginning of December ppincluding ATMs. The value of cash and goods stolen by the applicant exceeded $250,000. He was remanded in custody on 28 May 2015. On 3 March 2016 he was released on bail to attend drug rehabilitation which he undertook for 11 months. On 14 February 2017 he was sentenced in relation to the offences he committed in Queensland. He was given a total sentence of five years which was wholly suspended.
On 15 January 2018 the applicant was apprehended by police shortly after breaking into premises and attempting to break open an ATM.[7]
[7] Respondent’s Tender Bundle (RTB), at 99.
On 12 September 2018 the applicant was convicted in the Local Court of NSW at Tweed Heads of the offences committed on 15 January 2018 as well as historical offences committed in NSW during his earlier crime spree in 2015. He was sentenced to an aggregate of 30 months imprisonment with a non-parole period of 15 months. As a consequence of that sentence the applicant did not pass the character test prescribed in the Migration Act 1958 (Cth) (‘the Act’).
On 30 January 2019, the applicant’s Class TY Subclass 444 Special Category (Temporary) visa was cancelled under s 501(3A) of the Act. The applicant made representations under s 501CA(4) of the Act to have the cancellation revoked. On 13 November 2019 the delegate decided not to revoke that original decision.
APPLICATION TO THE TRIBUNAL
On 21 November 2019, the applicant applied to the Administrative Appeals Tribunal (‘Tribunal’) for review of the decision of the delegate dated 13 November 2019.
G-Documents were prepared by the respondent and filed with the Tribunal on 16 December 2019, which included all of the material before the delegate. Following the filing of the application, the applicant also filed:
(a)a statement from his ex-wife;
(b)a statement from the applicant’s eldest daughter, now aged 18 years;
(c)a statement from the applicant’s second daughter, now aged 15 years;
(d)a typed statement identified as coming from the applicant’s third daughter, now aged 8 years.
The respondent also filed a bundle of documents that I refer to as the Respondent’s Tender Bundle, which consisted of:
(a)extracts of material produced under summons by Queensland Police;
(b)extracts of material produced under summons by New South Wales Police;
(c)extracts of material produced under summons by Corrective Services New South Wales; and
(d)Villawood Immigration Detention Centre visitor logs.
A hearing was conducted on 23 and 24 January 2020.
At the hearing the applicant gave evidence about his upbringing in New Zealand, his family and criminal history and his prospects and goals for the future. This evidence was given in response to questioning by the Tribunal and questioning by the respondent’s representative. In addition, his daughters gave evidence about the impact on them if the applicant were removed from Australia.
The respondent filed a Statement of Facts, Issues and Contentions and made oral submissions.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which relevantly provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations [about the revocation] in accordance with the invitation [proffered under subsection (3)]; 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.
The applicant made the representations required by s 501CA(4)(a).
As outlined at paragraph [4] of this decision, the applicant was sentenced to a term of imprisonment of 30 months in relation to his NSW break and enter crimes and associated convictions. As a consequence, the applicant fails the character test.[8] The only substantial issue to be determined on this review is whether the power to revoke the mandatory cancellation should be exercised in the applicant’s favour because there is another reason to do so.
[8] A person will not pass the character test if they have a ‘substantial criminal record’: s 501(6)(a). A substantial criminal record includes if a person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
In considering that question, I approach the matter consistently with the observations of the Full Court of the Federal Court in Minister for Home Affairs v Buadromo:[9]
…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…[10]
[9] [2018] FCAFC 151.
[10] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
Accordingly, I will consider whether there is another reason why the original decision should be revoked. If there is, then that is determinative and I am obliged to revoke the original decision.
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, in accordance with s 499(2A), to comply with any lawful 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’) applies.
Paragraph 6.2 of the Direction provides general guidance in relation to the exercise of the discretion. It relevantly provides:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens…The principles below…reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
Paragraph 6.3 of the Direction relevantly provides:
(1)…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…and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should cancel [non-citizens’] visas if they commit serious crimes in Australia or elsewhere;
(3) A non-citizen who has committed a serious crime…should generally expect to forfeit the privilege of staying in Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community, only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age.
(6) Australia has a low tolerance for 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 should be allowed to come to, or remain permanently in Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether the non-citizen’s visa should be cancelled…
The Direction requires that, informed by the principles set out in paragraph [19] above, I must take into account the considerations in Part C of the Direction in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[11] Part C commences at paragraph 13. 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; and
(c)Expectations of the Australian community.[12]
[11] The Direction, paragraph 7(1)(b).
[12] Ibid, paragraph 13(2)(a)-(c).
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; and
(e)extent of impediments if removed.
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 Tribunal notes the significance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[13]
…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 [now Direction 79] does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 [now Direction 79] does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 [now Direction 79] concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[14]
THE APPLICANT'S BACKGROUND: WORK, SOCIAL AND CRIMINAL HISTORY
[13] [2018] FCA 594.
[14] Ibid at [23].
Fact finding principles
The following represent my findings of fact.
The evidence on which they are based is as cited. As it is necessary for me to form a view about the applicant’s likelihood of re-offending it has been necessary to make a number of findings about his criminal past.
The evidence consists of documentary evidence (including the representations made by the applicant to the delegate) and the oral evidence given at the hearing.
In his representations the applicant:
(a)described in detail his relationship with his wife and three daughters;
(b)listed his known relatives in Australia and New Zealand and described the impact on them if he was removed from Australia;
(c)explained his criminality on the basis that he was using drugs at the time following separation from his wife and children;
(d)identified the rehabilitation programs he had been involved in;
(e)indicated that he had learned tools which would assist him to resist offending in the future;
(f)set out the strength, nature and duration of his ties in Australia including his study and work history and the volunteering he had done over the years;
(g)raised a concern that he would be killed if he was returned to New Zealand because of his history with criminal gangs. He also flagged a concern that because his life would be seriously in danger, it would be hard to settle anywhere or lead a normal life and this would be bad for his mental health; and
(h)he expressed remorse for his crimes and his love for Australia and a desire to return to the Australian community and change his ways.
I have reviewed the material submitted to the delegate with the Personal Circumstances Form.
The material included:
(a)a letter from his social worker who described the applicant’s traumatic history, his reform process and the support the applicant will receive if he is released back into the community;
(b)a letter from one of the applicant’s former employers who had also got him involved in the local rotary club. This letter described the changes which came over the applicant in 2013 as he changed from an engaged family man to a self-centred drug addict. The letter emphasises the need for the applicant to have access to the right tools to stabilise his life;
(c)a second letter from the same employer offering to arrange employment for the applicant if he is ‘able to take charge and control the various issues [he has] had, and return to the strong and contributing person [he was] previously whilst working for Blackline Shipping’;
(d)a letter from a member of the Rotary Club of Coomera River, who had exposure to the applicant in 2011 and 2012, before he descended into drug abuse, and formed a favourable impression of him;
(e)a letter from the applicant’s Salvation Army case worker (dated 6 June 2017). It states that the applicant completed the “rehab and Fairhaven Recovery Services and is living now in the community sober and clean after years of addiction”. The letter noted that “Thomas has spent the last several years in institutions and does struggle with life in the community”;
(f)certificates recognising:
(i)completion of the Artius ‘Recovery from substance abuse’ program in the correctional centre dated 23 October 2015;
(ii)participation in the correctional centre choir in 2015;
(iii)competencies achieved towards a Certificate II in Horticulture;
(iv)the applicant’s work in the Workshop team in the correctional centre in 2015;
(v)the applicant’s valuable assistance and generous support which contributed towards fundraising for senior constable Melissa Pierce.
(g)a newspaper article dated 16 June 2017. The article states that in 2015 the applicant led a gang that attempted at least 40 ATM robberies, was allowed to walk with a five year suspended sentence by the Queensland courts and then became the face of the Gold Coast Red Shield Appeal for the Salvation Army;
(h)a historical report from a therapist in the Department of Social Welfare concerning his ongoing care prepared in about 1992;
(i)a letter dated 29 March 1993 from a Therapist-Counsellor from Children and Young Person Services New Zealand outlining the impact of past abuse on the applicant;
(j)documents recording various assessments and actions taken by New Zealand child welfare agencies.
The applicant gave extensive evidence at the hearing on 23 and 24 January 2020, in response to questioning by the Tribunal and the respondent. The evidence was broadly consistent with the material in the G-Documents though it was more detailed in relation to some matters.
Each of the applicant’s daughters also gave evidence by telephone. Each of them indicated in different ways that they would be distressed if their father was removed from Australia. It was clear, from the evidence given, that they were emotionally very close to their father and that the applicant’s youngest daughter, in particular, misses her father and is looking forward to seeing him again if he is released from immigration detention.
Applicant’s history
The applicant is a citizen of New Zealand. He was born there in October 1975.After he was born, consistent with a Maori custom concerning infertile couples, his biological parents gave him to relatives, Mr and Mrs Thomas and Matatu Adams to raise.[15] It seems that initially Mr and Mrs Adams were loving parents but Mr Adams died in an asthma attack when the applicant was less than three years old. Mrs Adams could not cope following the death of her husband. The applicant became a ward of the state as a result of her inability to parent appropriately. The applicant was placed with a Mr and Mrs Taite for over eleven years.[16] This placement was initially successful with the applicant recovering quickly from the early neglect.[17] The Taite’s provided almost full time care until 1990 (although with periods of respite care elsewhere for the applicant).
[15] G22, folio 132.
[16] G22, folio 140.
[17] Ibid, folio 137.

There was one very significant traumatic incident experienced by the applicant when he was 7, the detail of which I am aware of and have considered, but which it is unnecessary to recount for the purposes of this decision.
In his teens he became unhappy with the Taite family and was placed in a Community Youth Trust Home in 1990.[18] He was then placed with another foster family and again the initial signs were good. There was talk of the applicant being adopted by the foster parents but in late 1991 it appears that the foster mother behaved inappropriately towards the applicant.[19] He ran away and objected strenuously to the adoption going ahead.[20] During this period the applicant committed property crimes including stealing cars.[21]
[18] Ibid, folio 140.
[19] G20, folio 116.
[20] Ibid, folio 140.
[21] Ibid, folio 115.
In 1992, at the age of 17, the applicant went to Western Australia to meet his biological parents who at that time were living in Albany. To use his words, they did not live up to his expectations. He stayed with them for a while but eventually moved to Perth. The applicant started using drugs there including speed intravenously. At this time he was committing crimes and at 18 years of age went to jail in Australia. The offences included stealing and resisting arrest. When he was released from prison, the applicant made his way to Scone NSW to meet up with a brother he had been told was living there. He found his brother Raymond and stayed with him for a period.
The applicant returned to New Zealand in 1996 for a ceremony unveiling Mr Adams’ headstone. He had planned to return immediately to Australia, but ended up spending 4 years in New Zealand. In that time he worked doing security for nightclubs and became involved in the supply and use of drugs including LSD. When a drug distribution arrangement went wrong, the applicant ended up owing $15,000 to a criminal gang. He fled to the south island of New Zealand to avoid the consequences of the unpaid debt and began committing property crimes to obtain food and shelter. He feared for his life during this period.
In 1998 the applicant was caught by New Zealand police and was convicted in relation to a number of burglary, theft and possession of weapon offences committed in April, June and July 1998. He was sentenced to three years imprisonment.[22] Despite his debts to criminal gangs, the applicant was not harmed in prison. In his evidence the applicant put this down to the associates he had in prison who protected him and the fact that a prisoner is of little interest to a crime organisation as they have no ability to pay off debts in prison.
[22] G23, folio153.
When he got out of jail in 1999 he took part in a program for former prisoners which involved working land in Rotorua. However, the applicant decided that in doing this work he was not developing any skills so he needed to take another direction. He met an older couple who were willing to provide him with a home. They also arranged for him to undertake a welding and metal fabrication course at an engineering school. He completed the course but decided to return to Australia to seek work opportunities that he heard were available here.
The applicant returned to Australia on 29 August 2000. When he returned to Australia he denied having any criminal convictions on his incoming passenger card.[23] The applicant accepts that this was a lie and says he did it because he was hopeful of making a new life in Australia and did not want to be returned to New Zealand. He has not left Australia since.
[23] G24, folio155.
The applicant’s plan on arrival in Australia was to get to Toowoomba in Queensland where he understood there were trade jobs to be had building a new power station. He lived initially with his brother in Scone. Soon after his arrival the applicant met his future wife. The relationship became serious very quickly and after a period in Wollongong they set off together for Toowoomba. On the way she fell pregnant with their first child and their plans changed. They settled for a period in Brunswick Heads in northern NSW. They had their first child in August 2001 and got married in March the following year. In this period the applicant had steady work and a stable life. When they were living in Brunswick Heads the applicant did not commit any crimes and was not using any drugs. He was involved with the local community including the local rugby club.
In 2003 the applicant and his family moved to the Gold Coast.
Soon after the move to the Gold Coast the applicant’s second daughter was born.
It appears that initially the move to the Gold Coast was very positive for the applicant and his family. He had work as a fabricator with a shipping company and was recognised as a talented and valuable employee. The applicant has a Certificate III in Engineering fabrication from the Gold Coast TAFE.[24]
[24] G7, folio 77.
He was involved in his local community and was given a certificate of appreciation for his fundraising efforts for a Queensland Police officer who was struck down with meningococcal.[25] The applicant had involvement with his daughters at school which included attending the school to demonstrate the haka to his eldest daughter’s class. The applicant also had some involvement with the local rotary club and created a favourable impression among those he met.[26]
[25] G15, folio104.
[26] G11, folio 98.
To use his words to describe this period, the applicant appreciated having a nice home and a credit card and he was proud of how much he had achieved given all of the adversity which he faced in his early life. However, he was ‘proud to the point that it went to my head’. He struggled to control his spending and ended up in debt ‘up to his eyeballs’ with a large mortgage and credit card debts. He became greedy. He thought money gave him power and status but he didn’t know how to manage it. Drug use crept in.
By no later than 2008 he was using drugs. His drug use took two forms. The first was the smoking of ice at work to assist with work performance, particularly when long hours were expected. The use of the drug in this way appears to have been socially accepted among some of the people he worked with and was done openly with some of his workmates.
The second aspect of his use was on weekends when he used cocaine and ecstasy recreationally.
His use of the drug moved from the socially accepted (by his peers) smoking of the drug in the workplace to shooting up intravenously in secret.
During this period he was covering his family’s expenses but there were increasing strains on his marriage.
In 2009 he was picked up by police in Queensland with a backpack containing tools, a grinder and a black balaclava. He was charged with possession of implements that were to be used in relation to an offence.[27] It appears that the charge was not proceeded with.
[27] RTB, at 15.
The following year the applicant separated from his wife after a move to Sydney did not go well. The applicant returned to the Gold Coast - alone initially but he was later re-joined by his family. In 2011 the applicant’s wife gave birth to their third child.
Between 2008 and 2011 a number of attempts were made to address the applicant’s drug use. On one occasion, after his wife had discovered a large number of ziplock bags associated with his drug use, the applicant admitted that he had a problem. He disclosed his drug use to his employer and undertook a seven day drug detox. While initially this felt to the applicant that it would be successful in keeping him off drugs, it was immediately undermined by a work colleague who suggested that they smoke some ice in order to get through a heavy workload. He was soon using ice intravenously again.
The applicant’s wife moved out with their children around 2014. Within a very short period of his family moving out of the family home, the applicant was unemployed and dependent on ice. He had quit his job because of arguments he was having there. Two other drug users and a drug dealer moved into his house.
In December 2014 the applicant began what has been described as a crime spree. Between December 2014 and May 2015 the applicant was involved in multiple break and enter offences including on banks, real estate agents and petrol stations. Some of the offences involved physical damage to property including ATMs. The value of cash and goods stolen by the applicant exceeded $250,000.
On 28 May 2015 he woke up in his bed with the police standing over him after they had kicked in the door. He was taken into custody. When the applicant’s premises were searched he was found to be in possession of stolen property. He was remanded in custody and co-operated with the police in relation to their investigation.
After his arrest, when the applicant was being moved from the court room to the watch-house, a Salvation Army chaplain called out his name and said “I have a message from [your daughter] “I love you my dad”. The applicant was very moved by this and broke down. In his words “he decided then that he would not do drugs anymore”.[28] The applicant undertook all of the rehabilitation that he could. He was granted bail by the Queensland District Court to enable him to attend residential drug rehabilitation including the Salvation Army’s Fairhaven Recovery Program on Mt Tambourine.
[28] G8, folio 91.
On 14 February 2017 the applicant was sentenced in relation to the offences he committed in Queensland. He was given a total sentence of five years which was wholly suspended. Following his release he completed his rehabilitation program and re-entered the community in about March 2017.
Initially the applicant’s time in the community was very successful. He was drug free and undertook volunteer work to help others avoid the perils of drug addiction. He volunteered for the Salvation Army and he was featured in newspaper articles to encourage support for the Red Shield appeal. He gave speeches to publicise the good work of the Salvation Army.[29] He also volunteered for the Australian Ice Campaign[30] which involved him warning school children about the drug and describing his experience with it.
[29] G8, folio 89.
[30] G12, folio 99.
At some point the applicant was diagnosed with Post Traumatic Stress Disorder (PTSD).[31]
[31] Ibid.
After the initial euphoria of his release from prison and his involvement with the various public campaigns ended, the applicant began to struggle with his sense of self-worth. He continued to volunteer for the Salvation Army but struggled to stay drug-free. In late 2017 when he had picked up a drug user as part of his work with the Salvation Army, he succumbed to temptation and began using again. His return to serious drug use was rapid. On 12 January 2018 he was picked up by the Queensland police and tested for driving under the influence of drugs. Methylamphetamine was found in his system.[32]
[32] RTB, at 2.
On 15 January 2018 he was arrested by NSW police in Tweed Heads shortly after he broke into a shop. He was picked up wearing a balaclava and carrying an angle grinder, crow bar, cable cutters, pliers and a torch. When he was arrested there was a scuffle with police and he was charged with (and ultimately pleaded guilty to) resisting arrest and assaulting a police officer causing actual bodily harm.[33] The applicant’s evidence, which I accept, was that this was his first break and enter attempt since leaving the rehabilitation program.
[33] G3, folio 31.
The applicant was remanded in custody. He has not taken any drugs since that day.
On 12 September 2018 the applicant pleaded guilty in the Local Court of NSW at Tweed Heads to the offences committed on 15 January 2018 as well as historical offences committed in NSW during his earlier crime spree in 2015.[34] He was sentenced to an aggregate of 30 months imprisonment with a non-parole period of 15 months.
[34] G4. folio 37.
On 30 January 2019, the applicant’s visa was cancelled under s 501(3A).
In April 2019 the applicant was released from prison and transferred to Villawood Immigration Detention Centre.
He made extensive representations seeking a decision to revoke the visa cancellation.
On 13 November 2019 the delegate decided not to revoke the cancellation.
PRIMARY CONSIDERATIONS
As noted above, in determining whether there is another reason why the original decision should be revoked I am obliged to take into account the considerations outlined in Part C of the Direction. Those considerations are divided into Primary Considerations and Other Considerations. The Primary Considerations are:
(a)protection of the Australian community (which includes other considerations within it);
(b)best interests of minor children in Australia affected by the decision; and
(c)expectations of the Australian community.
The other 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 the applicant will face to establishing themselves and maintaining basic living standards if removed.
This is a non-exhaustive list of relevant considerations.
PRIMARY CONSIDERATION A: THE PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 13.1(2) of the Direction further provides that decision-makers should give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In relation to this criterion the applicant:
(a)did not resist the proposition that his past offending was serious. However he gave evidence that violence was ‘not his thing’ and noted that there was no sexual component to his offending and no violence towards women or children;
(b)volunteered that on at least one occasion he had inadvertently taken funds which were being raised for a vulnerable member of the community, but generally he had targeted large businesses and never attempted to break into homes;
(c)submitted in relation to the frequency of his offending that it occurred when he was addicted to drugs and his values were compromised;
(d)accepted that he had not been honest with the Department when he returned to Australia from New Zealand in the year 2000.
He accepted that over the years he had made a lot of bad choices but submitted that there were still good choices in his past and good examples for him to follow.
In relation to his risk of re-offending he submitted that in the past he had a lot of emotional issues relating to his inability to accept the end of his marriage. He needed to deal with the failure and loss and accept that the marriage was over. He had failed to do that in the past and that made him vulnerable to drugs. He now accepted that the marriage was over which placed him in a different position. Further he was now conscious that he was most at risk when he was socially isolated and that he needed to seek help from his support network if he was isolating himself. As a consequence he was at a very increased risk of slipping back into drug use and the offending to which it led.
In relation to the criterion in paragraph 13.1 of the Direction, the respondent submitted:
(a)that the applicant’s past offending was serious. In relation to the offences which he committed there was always a risk of harm to individuals and the offences involved unlawful trespass as well as property damage. The applicant resisted arrest and, given his guilty plea and, the fact the applicant was sentenced on the basis of that plea, the Tribunal could not look behind the conviction and take a more favourable view of the circumstances of his arrest (citing the decision of the Full Court of the Federal Court HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202). I accept that submission;
(b)the seriousness of the applicant’s offences is also reflected by the sentence imposed by the Court. Thirty months was the total head sentence imposed by the NSW court. However, if the sentences imposed had not been allowed to be served concurrently the applicant would have served eight years and four months. He committed 28 counts of break and enter in Queensland alone;
(c)over time the applicant has displayed a lack of respect for the law. This is evident from the applicant’s conviction for resisting arrest, his failure to comply with conditions of his release in 2017 and lying on his immigration card.
The respondent submitted that when viewed cumulatively, the applicant’s conduct is serious.
In considering the risk of re-offending the respondent submitted that there was a real risk of further offending. The respondent drew attention to the pre-sentencing report prepared prior to the applicant being sentenced for his NSW offending. The Community Corrections officer assessed his risk of re-offending as medium. The respondent submitted that this risk was consistent with the applicant’s offending history. The respondent noted that despite an evident determination on the applicant’s part to turn his life around in 2017, less than a year after completing rehabilitation he committed a further offence. This happened despite protective factors like family support.
In those circumstances the respondent submitted that there is a real likelihood that the applicant will commit further offences and accordingly this factor weighs heavily against the applicant.
The nature and seriousness of the applicant’s conduct to date
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. 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 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, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the courts 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)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 immigration status…
...
Protecting the Australian community from the harm which arises from criminal conduct is a very important consideration under the Direction. The applicant has in the past inflicted harm on the Australian community by committing offences which have predominantly involved the damaging of property and the theft of property. While it is true that the applicant has deliberately avoided committing such offences on private residences which are more personally traumatic for individuals and carry a greater risk of going wrong and involving some violence, this does not prevent me drawing the conclusion that his crimes should be treated as serious. This is reflected in the sentence imposed in relation to the NSW offences. As noted by Rares J in Brown v Minister for Immigration and Citizenship [2010] FCAFC 33 at [7], a suspended sentence of more than 12 months is a “very serious penalty”. When a custodial sentence of 30 months is imposed the crimes should be regarded as serious.

There are also aggravating factors. The applicant committed most of his crimes after lying about his criminal past on his incoming passenger card in order to enter Australia in 2000. In addition to his property offences the applicant also pleaded guilty to assaulting a police officer which is both a violent crime and a crime which shows disrespect for an important institution.
Against this, it should be noted that the applicant has not for the most part been involved in more serious offences including crimes of violence and sex crimes, or crimes where children or other vulnerable members of the community are victims.
Notwithstanding that the applicant’s crimes are not at the most serious end of the spectrum, the Australian community is entitled to expect to be protected from conduct of the kind engaged in by the applicant and accordingly this consideration weighs against revoking the visa cancellation.
The risk to the Australian community should the applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2(1) of the Direction 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 the Tribunal 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 the Tribunal 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.
(i) The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Any assessment of the nature of the harm to individuals or the Australian community were the applicant to engage in further criminal or other serious conduct, can be properly informed by the nature of his offending apparent in his criminal history to date.

Given the applicant’s offending history, it is likely that if the applicant engaged in criminal conduct in the future, it would take the form of involvement in property offences like breaking and entering in order to satisfy his need for cash to fund his drug habit.
I accept, as the applicant submits, that his offending deliberately targeted commercial premises and not domestic premises. Any future offending is likely to have the same character. If the applicant were to engage in further criminal activity I am confident it would take the form of attempts at burglary, without weapons, with a view to stealing cash or easily saleable items in order to fund his drug addiction. Associated property damage is likely.
I am satisfied that any re-offending by the applicant would result in harm to the Australian community in the form of damage to and theft of property.
(ii) The likelihood of the non-citizen engaging in further criminal or other serious conduct
Under the Direction I must also have regard to the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.
The respondent submits that in light of the applicant’s criminal history, there is a likelihood that the applicant will re-offend. The applicant rejects that proposition and submits that the likelihood of re-offending is low having regard to the applicant’s efforts at rehabilitation, his changed emotional state following acceptance of the end of his marriage and the enhanced tools he has for avoiding a return to addiction. The applicant contends that the likelihood that he will re-offend should be considered to be very low.
In assessing this factor I am making an assessment of the chances of something happening in the future. This is by its very nature a difficult task and in the present case is particularly difficult because the applicant claims that his past conduct is a poor guide to his future conduct because he has learnt an important lesson and is now reformed.
I accept that the applicant’s behaviour in prison has been exemplary and he has worked hard to acquire skills which will be useful if he were released back into the Australian community. I also accept that he has a close relationship with his wife and daughters and that he is very regretful about the negative impact his criminal conduct has had on them. I do not doubt that the applicant believes at present that when he is released into the community he will be able to resist returning to the use of ice and the criminal behaviour which was needed to fund its use.
However, I do not accept the applicant’s assessment. When the applicant was given a suspended sentence by the Queensland District Court in February 2017 he had been clean for almost two years, had undertaken a comprehensive drug rehabilitation program and was given every support and encouragement to stay clean and away from drugs. Within less than a year the applicant had returned to using ice and begun to engage in the criminal conduct needed to fund it. If the applicant was unable to stay clear of drugs in the very favourable circumstances in which he found himself in 2017 there is a significant risk that the applicant will return to using ice and begin committing crimes again. The applicant’s drug use is deeply entrenched. He commenced intravenous drug use in 1994 and has spent only a small part of his life avoiding the use of drugs altogether.
I do not accept that it is likely that he has learnt any new tools for resisting drug use that he did not already know when he succumbed to temptation in late 2017. I do not accept that there was anything specific about his emotional state in 2017 that means he will be better placed to resist the temptations of drugs in the years ahead.
While I do not want to be discouraging of the applicant’s very real efforts to get himself into a position where he can remain drug free for the remainder of his life, on the evidence available to me I cannot accept that the chance of the applicant returning to drug use is small. There is a very real prospect that he will return to drug use. If the applicant does not remain drug free, then it is very likely that he will resort to criminal behaviour to fund his addiction. I agree with the pre-sentence report prepared for the applicant’s sentencing by the NSW Local Court – there is a medium risk of the applicant re-offending.
In these circumstances, I consider that the combination of:
(a)the seriousness of the harm to individual Australians and the Australian community that will arise if the applicant were to engage in further criminal conduct; and
(b)the moderate risk that that will occur;
combined with the nature and seriousness of the criminal conduct already engaged in mean that this consideration weighs against the applicant. It does however weigh less heavily against him as a consequence of:
(a)his crimes being largely restricted to property crimes; and
(b)the fact that his crimes are only committed when he is in the grip of drug addiction.
The applicant has been drug free now for almost two years and when he is released he will be living with his brother and sister-in-law. In these circumstances there remains some prospect that he will not return to drug use. If the applicant remains clean it is highly unlikely that he will be involved in any crime.
Conclusion: Primary Consideration A
As noted above, the applicant’s offending is serious and there is a moderate risk that he will engage in criminal conduct in the future. If the applicant engages in similar criminal conduct in the future, it will cause harm to the Australian community in the form of property losses and damage. Protection of the Australian community therefore favours a non-revocation decision.
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 minor child who may be affected by the 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.
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 comprise:
(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.
There are two minor children whose interests the Tribunal must have regard to in the applicant’s case, namely the applicant’s two youngest daughters. I am conscious that I must consider each of their interests separately, but for the purposes of discussing those interests I have dealt with them both at the same time. This is a reflection of the fact that the daughters’ interests are very similar.
If the applicant is allowed to remain in Australia his expectation is that he will go and live with his brother and sister-in-law in Scone, NSW. His children live on the Gold Coast, Queensland at present. The applicant expects that he will live in Scone for some time. He will live there to comply with his parole conditions and to get his life back in order – including getting work and proper support for his transition back into the community. However, his expectation is that his daughters will visit him there during school holidays and he will have physical contact with them in those periods.
Longer term, his goal is to live closer to his children and he hopes to be part of their lives every day. That would involve a move to the Gold Coast. The applicant does not expect to reconcile with his wife which means it is unlikely he will end up living in the same house as his daughters. There is no suggestion that his wife would block access to his children if the applicant remained clean.
I explored with the applicant whether if he was returned to New Zealand the children could holiday with him. He said that was not something he could expect their mother to enable and as he had no money he did not think it was something that would happen. In light of that assessment I am proceeding on the basis that the applicant is unlikely to have much physical contact over the next few years with his daughters if he is returned to New Zealand.
When the applicant’s daughters gave evidence there was a comfortable familiarity between the applicant and his children and a close emotional bond was evident.
Although all three of his daughters gave evidence, it is only the best interests of his two younger daughters which I consider in this part of my decision.
The respondent accepted that it would not be in the best interests of the two youngest daughters for the applicant to be removed from Australia. It did however note that the children would be well looked after by their mother and will be able to contact the applicant electronically if he is returned to New Zealand.
Having regard to the factors set out in the Direction:
(a)I am satisfied that the applicant has a close parental relationship with his daughters despite the fact that he has been separated from them by his drug habit and incarceration for the majority of the period from late 2014 until now.
(b)I am satisfied that the applicant plays a positive parental role in his daughters’ lives now. Provided he remains clean, I expect that he will play a positive role in their lives into the future. If however he succumbs again to his addiction, which as noted above is a real possibility, how positive that role will be is more doubtful.
(c)No specific evidence was given about the impact of the applicant’s drug use on his daughters. However, it was clear that concerns about the applicant’s drug use caused the girls’ mother to leave the family home with them around 2014. The applicant’s eldest daughter became estranged from the applicant as a result of his drug use and it was only after his arrest that there was a rapprochement. It is possible that if the applicant succumbs again to drug use that this will negatively impact upon his two youngest daughters.
(d)The applicant’s two youngest daughters gave clear evidence that they would be heartbroken if their father was removed from Australia. It was, however, clear that their expectation was that if the applicant remained in Australia he would be close enough to be involved in their lives on a daily basis. That will certainly not be the case when the applicant is initially released and so in the applicant’s daughter’s minds the difference between the applicant going to New Zealand or staying in Australia is to some degree exaggerated. The fact that the applicant will be unable to maintain any physical contact even during school holidays and with no prospect of increased closeness are however, big differences between a scenario in which the applicant is removed and the scenario in which he is allowed to stay. I consider that the difference in the levels of contact between the applicant being removed to New Zealand or remaining in Australia is significant and will have an impact on the applicant’s relationship with his daughters.
(e)The applicant’s ex-wife fulfils a parental role for the applicant’s daughters.
(f)The applicant’s two youngest daughters do not want to be separated from their father and have expressed that view.
(g)There is no evidence to suggest that the applicant has ever neglected or abused his children or inflicted trauma on them.
In my assessment, the applicant enjoys a close and loving relationship with his two youngest daughters. If the cancellation of the applicant’s visa is revoked, he would make every effort to re-integrate himself into their lives.
Conclusion: Primary Consideration B
If the applicant’s visa cancellation is not revoked, there will be a significant adverse impact on his two youngest daughters. They will be physically separated from their father for the foreseeable future and there will be no prospect of them having their father re-integrated into their lives in the future. In these circumstances, I am satisfied that it would be in both of his youngest daughters’ best interests for the applicant to have his visa cancellation revoked.
The applicant also has nieces and nephews some of whom know him and will be disappointed and upset if the applicant is removed from Australia. However, the applicant was unable to identify any specific niece or nephew encompassed by the direction who would suffer any specific impact to their interests. Given that the applicant has a history of being a drug addict it is far from certain that he will be a positive influence on his nieces and nephews. In those circumstances, I cannot conclude that it would be in the best interests of any of his nieces or nephews for the applicant to remain in Australia, but this is not of much significance in my assessment of this consideration.
In light of the impact on his youngest daughter’s interests, this consideration weighs heavily in favour of revocation of the cancellation decision.
PRIMARY CONSIDERATION C: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The final primary consideration is the expectations of the Australian community.
In approaching this consideration, the Tribunal notes the following matters which are relevant to applying this consideration to the applicant.
(a)The expectations of the Australian Community are not matters for evidence. They are expressed normatively and the expectations are what the Government says they are, even though in actual fact, if they were ascertainable, community expectations might be quite different;[35]
(b)Decision makers are bound to have due regard to the Government’s view regarding community values, standards and expectations as set out in the Direction;[36]
(c)The expectations of the Australian community are conclusively expressed (for present purposes) in paragraph 13.3 of the Direction;[37]
(d)There are a spectrum of ways of reading paragraph 13.3 and the precise way of expressing the expectation of the Australian community as discernible from paragraph 13.3 is one on which reasonable minds may differ. In its strongest form, the paragraph can be understood as expressing a deemed community expectation that all person who have committed serious criminal offences giving rise to character concerns should not have their visa cancellations revoked.[38] A more flexible expression of that principle is “[I]f you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive”.[39]
[35] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [91] per Stewart J.
[36] See, for example the Direction, paragraph 6.2 and 6.3; DKXY v Minister for Home Affairs [2019] FCA 495 at [31].
[37] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] per Charlesworth J and at [94] per Stewart J (although noting that those judgments deal with paragraph 11.3 of the Direction which applies to visa applicants. Paragraph 13.3 is not materially different except that it applies to revocation requests.)
[38] To adapt the words of Justice Charlesworth in FYBR at [75] to present circumstances.
[39] To use the words of Justice Stewart in FYBR at [101].
Whichever expression of community expectations is accepted, in the present circumstances, it weighs against revocation of the cancellation. The applicant has breached the community expectation that non-citizens will obey the law while in Australia. The seriousness of the offences – including breaking and entering, stealing and assaulting police offences – are such that the Australian community would expect that the applicant should not hold a visa. While this is not decisive in determining whether the applicant’s visa cancellation should be revoked, I must have due regard to this when making my decision. Accordingly this factor weighs against the applicant. However, the offending is not so serious that it could not be outweighed by other factors.
OTHER CONSIDERATIONS

It is necessary to consider the Other Considerations listed at paragraph 14(1) of the Direction. I have considered each of the five stipulated subparagraphs (a), (b), (c), (d) and (e). I will address each in turn.
(a) International non-refoulement obligations
The applicant gave evidence that because of his previous criminal gang connections, if he returns to New Zealand there is a risk that he will be killed as a consequence of his non-payment of debts in the mid-1990s.
I do not accept that such a risk exists. The applicant incurred those debts in approximately 1997. I accept that he was on the run from criminal gangs for a period. In 1998 he spent time in jail in New Zealand and after his release remained in New Zealand unmolested while undertaking work and study. The applicant’s evidence was that he left New Zealand to pursue work opportunities in Australia. He did not mention fear of gangs as a motivation behind his decision to leave. In those circumstances I do not accept that there is any particular risk which the applicant faces if he is returned to New Zealand.
In his closing submissions the applicant conceded that he could not identify any specific fear of any specific harm.
In these circumstances, I am satisfied that Australia is not prevented from returning the applicant to New Zealand as a consequence of non-refoulement obligations owed to the applicant.
(b) Strength, nature and duration of ties
The principles in the Direction relevantly provide:
Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
This principle is relevant in assessing the strength, nature and duration of the applicant’s ties.
The applicant first came to Australia when he was 17. He visited his biological parents in Western Australia but almost immediately became involved in drug use and criminality. The respondent submits that the fact that the applicant had only been in Australia for a short period before committing crimes counts against the applicant in assessing this criteria. I accept that submission.
However, it is important to record that the applicant came to Australia to connect with his biological parents who he had been separated from since birth. In New Zealand his adopted father had died, his adopted mother was not engaged in his upbringing, and his relationship with the foster family where he spent the majority of his youth had broken down. Accordingly, his connections in New Zealand are extremely weak. By contrast, his ties to Australia are strong. Although the applicant never developed a connection with his biological parents in Western Australia, he did develop a strong connection with his brother in Scone after his release from prison. He describes his connection with his brother Raymond as ‘massive’ and that his brother is a role model for him – the first he has had. After he returned to Australia in 2000 the applicant went 17 years without a conviction being recorded. Many of those 17 years were productive years spent building family and community relationships and working productively. His family ties remain close. He is close to his ex-wife and children. His ties to Australia are deep and durable. There are prospects that he will be employed if he is returned to the community.[40]
[40] G10, folio 97.
This factor weighs heavily in the applicant’s favour.
(c) Impact on Australian business interests
No impact on Australian business interests was identified by the applicant.
(d) Impact on victims
No adverse impact on any victim was identified by the respondent.
(e) Extent of impediments if removed
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 in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country).
The Tribunal must take into account the criteria set out in paragraphs 14.5(1)(a),(b) and (c) which are:
(a)       the non-citizen’s age and health;
(b)       whether there are substantial language or cultural barriers; and
(c)       any social, medical and/or economic support available to them in that country.
The applicant has no close family connections in New Zealand although he does have contact with the family who assisted him to attend the engineering school in New Zealand. He described that contact as ‘not warm’. He has uncles and aunts and cousins who still live in New Zealand but there is no evidence that he has had any meaningful contact with them.[41]
[41] G7, folio 75.
However, New Zealand is an advanced economy with a well-functioning social welfare system. The applicant did not contest the submission made by the respondent that as a relatively young able bodied man with no cultural or language barriers, there were no impediments to him establishing himself back in New Zealand. The applicant accepted that he could obtain treatment for his PTSD in the New Zealand health system, just as he could in the Australian health system. The respondent submitted, and I accept, that the applicant will not be destitute upon his return to New Zealand.
In my assessment there are no impediments which the applicant faces in establishing himself and maintaining basic living standards back in New Zealand. This consideration does not provide any support for a revocation of the cancellation decision.
Other considerations not stipulated in the Direction
The applicant did not identify any other specific considerations, in addition to the non-exhaustive list of ‘Other Considerations’ specified in the Direction, to which I should have regard. I have, however, considered all of his personal, social and criminal history in the context of the considerations discussed above.
Summary of findings – Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
·International non-refoulement obligations: there is no non-refoulement obligation which needs to be considered.
·Strength nature and duration of ties: strongly in favour of revocation.
·Impact on Australian business interests: not relevant.
·Impact on victims: not relevant.
·Extent of impediments if removed: does not support revocation.
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 power to revoke the applicant’s visa: either the applicant must be found to pass the character test, or the Tribunal must be satisfied that there is another reason why the original decision should be revoked. In exercising the power, the Tribunal must take into account the considerations in Part C of the Direction and other relevant considerations. As I have noted above, the applicant does not pass the character test. Having regard to the Direction and to the totality of the evidence before me, I am satisfied that there is another reason for the Tribunal to revoke the cancellation of the applicant’s visa.
When the primary considerations and other considerations are weighed carefully they fall slightly in favour of revoking the cancellation decision.
The applicant’s crimes are serious. However, they for the most part do not involve any violence, sexual violence or target the vulnerable. Indeed the applicant appears to do his best to ensure that he commits property crimes which are not accompanied by aggravating elements. His crimes are committed when the applicant is in the grip of his addiction to drugs and are directed exclusively at funding that addiction. I do not doubt that he will do his best to avoid further criminality, but I accept that there remains a significant risk that he will succumb to his drug addiction and may commit further crimes. The community deserves protection from the applicant’s crimes and in many circumstances his crimes, and the risk they will be repeated, would be enough to warrant a non-revocation decision in relation to his visa cancellation and deportation from this country.
However, there are two factors, one of which is a primary factor, that favour a different result. First: the interests of his two youngest daughters. While the applicant has through his own actions brought about long periods of separation from his children, both he and they remain committed to a close and loving relationship. At ages 8 and 15, it is in those girls’ best interests that they have every opportunity to maintain a close relationship with their father. While it is possible for some connection to be maintained if the applicant is deported to New Zealand, any close relationship which involves person to person contact will be largely ruled out. Any chance of significant involvement by the applicant in his children’s daily lives would be ruled out by deportation. I am satisfied that eliminating all person to person contact and the prospect of the applicant having significant involvement in his daughters’ daily lives is not in the best interests of the two girls. This factor weighs heavily in favour of the applicant.
Second, all of the significant social and family ties which the applicant has are here in Australia. He has proven over an extended period that despite the traumas in his past, he has the ability to contribute productively to Australia provided he stays away from drugs.
The combination of the applicant’s criminality being at the low end of serious, the closeness of his ties in Australia and the clear interests of his youngest daughters take the applicant’s case outside of the calculus that would generally apply. The best interests of his minor children and the strength nature and duration of his tiesin combination outweigh what would generally be decisive primary considerations – the protection of the Australian community and the expectations of the Australian community.
I am fortified in this conclusion by principle number (4) in paragraph 6.3 of the Direction. It provides:
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
Implicitly this principle recognises that if the possible harm from re-offending is less serious, then a risk that it may be repeated can be offset by other strong countervailing considerations. This is such a case.
I accept that a return to drugs and criminality by the applicant remains a risk. If the applicant’s offending was not mostly restricted to property offences and was normally characterised by violence, sexual violence or targeting of the vulnerable, I would have no hesitation in affirming the cancellation decision. However, because the risk of harm to the community is not of that nature, I am satisfied that the risk that the applicant may commit further offences is outweighed in this case by the strong countervailing considerations concerning the best interests of his minor children and the strength, duration and nature of his ties to Australia.
The applicant should expect that this is his last chance to build an honest and productive life in Australia. If he uses drugs again and commits the kinds of crimes he has committed in the past it is difficult to imagine him receiving anything other than a significant custodial sentence followed by a visa cancellation. I fully appreciate that the applicant has been given chances before and squandered them and that there is a significant risk that he will do the same with this opportunity. However, the depth and nature of his family connections in Australia warrant one further opportunity to choose a different path.
DECISION
The decision of the Respondent made on 13 November 2019, being a decision of the delegate of the Minister for Home Affairs not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth), is set aside.
In substitution, the decision to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked.

I certify that the preceding 144 (one hundred and forty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Damien O'Donovan

............................[SGD]............................................
Associate
Dated: 5 February 2020

Date(s) of hearing: 23 and 24 January 2020

Applicant: In person

Solicitors for the Respondent: M Gao, Australian Government Solicitor

[2020] AATA 122

5 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Natural Justice

Jurisdiction

Date(s) of hearing:	23 and 24 January 2020
Applicant:	In person
Solicitors for the Respondent:	M Gao, Australian Government Solicitor