1. It is not a matter in dispute that the applicant does not pass the character test.
2. Section 501(3A) states:

The Minister must cancel a visa that has been granted to a person if: > > (a) the Minister is satisfied that the person does not pass the character test because of the operation of: > > (i) paragraph (6)(a) ...

3. Paragraph (6)(a) states that 'for the purposes of this section, a person does not pass the character test if':

the person has a substantial criminal record (as defined by subsection (7));

For the purposes of the character test, a person has a substantial criminal record if: > > ... > > (c) the person has been sentenced to a term of imprisonment of 12 months or more;

5. On 19 December 2024 the applicant was sentenced to a term of imprisonment of three years for the supply of a prohibited drug at a commercial quantity. The term of imprisonment is greater than 12 months and as such he has a 'substantial criminal record'. A person does not pass the character test if the person has a substantial criminal record. As such, the applicant does not pass the character test.

Whether there is another reason why the cancellation should be revoked

1. Under s 499 of the Act the Minister may give directions to those who have functions and powers under the Act. Those with such functions must comply with any given directions. Direction 110 is relevant to matters of revocation of a mandatory cancellation of a visa under s 501CA of the Act.
2. The Direction has overarching principles (5.2) along with primary and other considerations that should be considered with detailed guidance under each. The principles provide a framework 'within which decision-makers should approach their task.'
3. The primary considerations are:
   • protection of the Australian community from criminal or other serious conduct
   • whether the conduct engaged in constituted family violence
   • the strength, nature and duration of ties to Australia
   • the best interests of minor children in Australia
   • expectations of the Australian community
4. The other considerations are:
   • legal consequence of the decision
   • extent of impediments if removed
   • impact on Australian business interests
5. Informed by the Preliminary guidance in Part 1 of the Direction, I now turn my mind to applying the guidance in exercising the discretion as to whether there is another reason why the cancellation should be revoked as detailed in Part 2 of the Direction.

Primary Consideration 1: Protection of the Australian Community

1. Direction 110 instructs decision-makers to have 'particular regard to the principle that entering or remaining in Australia is a privilege[1] that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.' In addition, the Direction states that decision-makers should also consider the nature and seriousness of the conduct to date and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

Nature and seriousness of the Applicant's conduct to date

1. In April 2007 the applicant was involved in a crime that led to a conviction of Take/detain person with intention to obtain advantage occasion abh-SI. The applicant was only arrested two years later and subsequently sentenced to five years imprisonment from March 2011. The respondent extracted the following paragraph describing the offending from the sentencing remarks:

...When the offender and several others arrived, the complainant was being held, bound and gagged in another room. While the offender was ransacking the complainant's wardrobe, a co-offender armed with an offensive weapon, a gun, threatened the complainant that if he did not give him money, "you will die, I'll shoot you". At one point, El Majid obtained a hammer from the kitchen and used it to hit both the complainant's hands. He also twisted the complainant's wrists. I repeat that the offender did not participate in the assault of the complainant.

2. The Respondent argued that the nature of the crime reflects the seriousness of his offending. The applicant was involved in a joint criminal enterprise, the Respondent argued, and benefitted from the violent act, even though he was not involved in assaulting the victim.
3. Through cross examination the applicant described having completely forgotten about his participation in that offence until the police came two years later and arrested him. He said that he had not thought about what he had done and at the time of the offending he was heavily on drugs and alcohol. Under re-examination-in-chief the applicant said that he was not thinking of it regularly as he did not want to acknowledge to himself that he was that type of person. He said that if he had known how that evening would play out, he would not have involved himself.
4. At the time of the April 2007 offending the applicant was on a good behaviour bond arising from breaching an Apprehended Violence Order. The breach of the AVO is further detailed under the family violence section. The applicant was sentenced to periodic detention having to go to jail every Friday and remain through to Monday morning for a period of 15 months. He breached a good behaviour bond arising from this conviction by, according to the applicant, failing to attend programs suggested by his parole officer and failing to appear in court. He claimed that he had attended some of the culturally targeted programs but not others.
5. The applicant had also been caught driving erratically in October 2007 and was found to have been driving unlicensed, driving an unregistered and uninsured vehicle.
6. At the beginning of the applicant's periodic detention in 2009 the applicant was found to have a weapon in his cell. At the hearing he explained the circumstances as being he had just moved into that compound and into a new single occupant cell. There were metal window flaps which he would try to open when he would hear a noise outside by pushing it open. He wanted to leave it open and looked around the cell for something that could hold it open. He said that other things he tried would not do the job. In the window recess he found a metal instrument made from some railing that fit perfectly so he used it. The next day he was brought to the area manager's office, shown the object and told that anything found in a cell after 24 hours is deemed his. He claimed that he did not know it was a weapon. He acknowledged it sounded implausible but said that he recalls this story to others because of how implausible it sounds.
7. The applicant was released from prison in October 2014. In July 2015 he was given 150 hours of community service for an incident involving him bashing the door of his neighbour's house. He described the circumstances as while being out drinking with friends his partner who was at home with his son rang him about their neighbour pacing back and forth in front of their door. At the time the windows of their car had been smashed and he believe that it was the neighbour who had done it. He described his partner as being scared, so he went home and went to speak to the neighbour. The neighbour was there but only spoke to him through the door, they argued and then the applicant kicked the door.
8. From July 2015 through to December 2024 the applicant has no convictions, nor is there a claim that he was involved in any conduct of note.
9. On 19 December 2024 the applicant was convicted of Supply prohibited drug>=commercial quantity - SI. He was sentenced to three years imprisonment. Again, the Respondent drew from the sentencing remarks:

Upon doing a search of that motor vehicle they found the drugs in question in a hidden compartment of the motor vehicle. The compartment had what was referred to as a hydraulic lock and was further secured with screws. What was found inside the compartment was a clear resealable plastic bag containing the 471 grams of methylamphetamine with a purity of 67%.

10. The applicant explained that he agreed to participate in the movement of the drugs because he had accrued a debt of eighteen thousand dollars to his drug supplier. The debt was raised across a period of about four months of drug usage. The applicant claims that he started using drugs after losing his job in 2023. According to the applicant, not all of the money was spent on drugs that he solely consumed - some were shared with his friends. He said that the drug supplier offered him a chance to resolve the debt.
11. The Respondent noted that sentences involving terms of imprisonment are a last resort and 'and must be viewed as a reflection of the objective seriousness of the offences involved.' In the applicant's case, he has had three sentences involving imprisonment (a periodic, a five-year and three-year term). The Respondent drew on the sentencing remarks in the prohibited drug case noting that the judge found 'This is a serious offence of deemed drug supply, done in full knowledge of what he was doing and involving a very significant amount of the drug.'
12. Of note the applicant is alleged to have failed to comply with a digital access order for which he was not convicted but having agreed to a Form 1 procedure the judge's sentencing took this into account.
13. In addition to the term of imprisonment as an indicator of the seriousness of the matter, the Respondent noted the impact that the supply of methylamphetamine has on the Australian community.
14. The Direction requires consideration of the cumulative effect of the applicant's offending, which I acknowledge is substantial. There are in total three prison sentences that amount to some 8 or more years, AVO, and breach of probation among others.
15. The Respondent notes that the applicant was warned, in writing, in January 2012: 'Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.'
16. The Applicant's Representative noted that the most recent offense did not involve violence but accepted that his offending was serious.
17. In addition, I note that the frequency of the applicant's offending is relevant (8.1.1(1)(f)). While the applicant was frequently offending between 2007 and 2015, over the following eight years he did not. This is a substantial gap and as such when considering the nature and seriousness of the applicant's conduct, this period of non-offending mitigates the impact on this decision of his earlier substantial offending.

The risk to the Australian community should the applicant commit further offences or engage in other serious conduct

1. When considering the risk to the Australian community, para 8.1.2(1) of the Direction explains that:

decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

In the context of this matter, decision-makers must turn their mind to the nature of the harm to individuals or the Australian community if the applicant were to engage in the conduct again, as well as the likelihood of the applicant engaging in such conduct.

1. With regards to the nature of the harm if the applicant were to engage in further criminal or other serious conduct, the Respondent argued that any such action would result in serious harm and that it would involve physical and psychological harm to members of the Australian community. The Respondent quoted the sentencing remarks in the applicant's drugs matter as potentially having 'devastating social consequences' had the drugs reached the market.
2. The Respondent also drew on a report by the Australian Crime Commission The Australian Methylamphetamine Market - The National Picture to detail the impact of drugs in the Australian community. The extract provided by the Respondent was:

Of all illicit drugs, the ACC assesses that methylamphetamine, and in particular crystal methylamphetamine, poses the highest risk to the Australian community. The following factors all support this conclusion: > > • the rapid growth of the methylamphetamine problem across cities, regional and remote communities > > • the harms methylamphetamine poses to the individual, including psychosis and other long term psychological and behavioural problems > > • the links between methylamphetamine use and other crime types including violent crimes against the person and property crime > > • the harm to the community (including families of users, innocent bystanders and road users, frontline staff in hospitals, law enforcement and emergency services, and non-government organisations) > > • the economic impact to governments and the community, and redirection of finite resources away from other harmful activity > > • the impact on legitimate industry sectors (such as the pharmaceutical, chemical and transport sectors) through diversion of chemicals and transport of illicit substances > > • the significant profit to be made by organised crime groups in the importation, domestic manufacture, sale and distribution of methylamphetamine > > • the presence of both importation and domestic manufacture of methylamphetamine, unlike other illicit drugs

3. The Respondent noted that the quantity of the drugs that the applicant was 'prepared to supply' would have had an enormous and widespread impact.
4. The Applicant's Representative acknowledged that any future offending would pose an unacceptable risk to the Australian community.
5. In considering what further criminal or other serious conduct may look like, I do not turn to the applicant's distant past nearly twenty years ago when his offending involved violence or was associated with violent acts. Rather, the type of offending I am considering is drug distribution arising from similar circumstances in which the applicant relapses into drug usage, accrues a debt and is pressured to repay it by doing jobs for the drug distributors. In this instances, I am satisfied that the Respondent's description of the nature of the harm is accurate, that it would have devastating social consequences and that the harm would be wide ranging across swathes of the community.

1. The Applicant's Representative suggested that the applicant's 'significant disadvantages' growing up including exposure to domestic violence, parental separation and lack of supervision during adolescence contributed to the pathway he took early in his life and inferred that over time as he has matured these past influences diminish in their hold on him. She added that he has accepted responsibility for his actions and expressed remorse. He has acknowledged the impact and engaged with rehabilitation. In addition, he has protective factors in place being the support he receives from his family and community. And that the only offending since 2015 was triggered by significant stressors. She argued that the applicant's desire to remain in Australia to raise his children will be a strong incentive not to reoffend. She noted that the applicant has complied with custodial requirements, expressed remorse, abstained from drug use since July 2023 and taken steps towards rehabilitation.
2. The applicant noted in his statement that he has abstained from alcohol and drugs since July 2023, but it should be noted that this is a period that he has been incarcerated or in immigration detention and as such his abstinence has not been tested in the community. Nevertheless, the applicant claims that in prison he sees drug usage and that he could have turned to drugs while in prison and detention.
3. The applicant's assessment of his own personal journey including insights, learnings, values, and sense of remorse along with his willingness and ability to abstain from drugs and alcohol are relevant in considering the likelihood of reoffending. I consider them collectively under the heading 'Internal'. Other protective sources such as family, friends, community and professional support are also relevant, and I considered them under the heading 'External'.

1. At the hearing he expressed emotional pain for being the cause of the separation from his children and partner. He said that it hurts to see his children upset and not being able to be there to console them. He said that it upsets him that he can't provide love to his children in ways that he wants to be able to. He expressed concerns about his two daughters knowing the real reasons for his absence explaining that he has been telling them that he has been away for work. He said that it hurts having to lie to his children but that they are too young to understand the situation.
2. The applicant provided his view about his journey:

I know that the way I dealt with it before, ultimately led to my custodial sentences. I think that just taking on everything on my own has been an issue. I have a strong support group, I didn't turn to them when I need to open up, when I've been a lot more vulnerable with my family and letting them know my feelings especially since July this year, especially the mental challenges I have faced in regards to my visa status, I have found healthy ways to try to cope with times like this. Its very difficult and hard situation for myself to go through and everyone else in my life. I have found that being depressed and trying to suppress my feelings doesn't really help. I have put plans in place to continue rehabilitation and seek professional help and be more aware of those situations where I might find myself going through a hard time and using the tools I have been learning since I have been in jail and detention.

3. The applicant recalled his parent's separation, and having struggled to come to terms with why his parents separated and his mother's absence from his life. He claims to have reflected on how his upbringing may have shaped his life and that he does not want the same for his children. He added that he believes that his physical presence would play a considerable part in their lives. He said that he misses not being there for his children's special occasions, Christmas, New Years and Halloween. He misses school assemblies and being there when they achieve something or receive a certificate. He mentioned missing not being there when they lose a tooth and seeing their excitement about the tooth fairy.
4. He has reflected on his employment and after his experiences has thought about seeking employment in the support industry helping people affected by drugs, alcohol and impacted by mental health. He said that he hopes to be able to share his experiences with those who are treading a similar path. He said that we all can make decisions that are out of character and now that he has gone through it, he has come to realise it, so has much to share and contribute with others.
5. The applicant detailed the rehabilitative programs he has completed including:
   • - Positive Lifestyle Program
   • - Remand Addiction Program
   • - Understanding Addictions
   • - 12-Step Program
   • - Vocational training (Supply Chain Operations, Certificate II in Community Services)
   • - Music mentoring and community participation programs
   • - Spiritual practice
   • - Participate in structure activities that promote pro-social behaviour.
6. He claims to want to continue with these programs once released. He stated, 'It has been through these programmes that I have become aware about my offences and my behaviour. All my offences have happened whilst abusing drugs and having time to reflect I have come to know that it has stemmed from not being able to cope with my emotions, instead I turned to substance abuse.'
7. A reference from the Chaplain who conducted the Positive Lifestyle program spanning six months described her view of the applicant as being:

He has consistently demonstrated good qualities such as compassion, polite and kindness. In my interactions with him, I feel he developed a sense of responsibility and a genuine concern for the well-being of others. His generosity is to be admired. He is always ready to go the extra mile to help someone. > > Throughout my engagement with him, he is keen for further learnings to better himself and am confident he will do his best in the future, to be a productive and law-abiding member of society.

8. The applicant expressed remorse in his written statement, noting that his conduct in prison and detention is clear and that he has undertaken efforts to rehabilitate. He wrote, 'I am deeply remorseful for the harm my actions have caused to the community, my family, and those directly affected by my behaviour. I understand the seriousness of my offences and the impact that they have had.' He has committed to continuing with a support group in the community if his visa cancellation is revoked and his partner has begun looking into this option. He has also referred to ongoing support from the church. According to his partner, the applicant pleaded guilty on the drug charges at the first instance.
9. The applicant has provided extensive evidence that supports his claims of being committed to his children. These are detailed in two separate sections below, but relevantly in this section, I accept that his motivation to be a father and play a role in his children's life is a strong motivational factor against reoffending.
10. With regards to the likelihood of reoffending the Respondent suggested that the risk is 'medium'. This was suggested to arise from his repeated offending and due to the applicant's 'continued reoffending'. The Respondent submitted that the applicant has had many opportunities to reform since his first conviction in 2011 including a formal warning from the Department in 2012, knowing that the consequence could involve removal as occurred with his brother in 2018 and yet he reoffended with a conviction in 2024. The Respondent noted that at sentencing the judge identified the risk the applicant posed as being 'low' and acknowledges the sentencing judge had found that the applicant had 'good prospects of rehabilitation,' but argued that the Tribunal should take into consideration some matters that the judge did not have regard to which are the applicant's immigration history. This includes that he was warned of the consequences of reoffending and yet continued reoffending.
11. The Respondent took the Tribunal to a psychological assessment from 2011 in which the applicant stated that 'he ceased all drug use and he denied relapsing to any further drug use since that time, apart from irregular use of cannabis. He expressed a commitment to maintaining his drug abstinence in the long-term.' The applicant acknowledged that despite giving an undertaking that he would pursue alcohol counselling he did not. The applicant acknowledged this but said that he participated in Alcoholics Anonymous while in jail in 2009. He acknowledged that he still relapsed. He said that he understands that his history with drugs and alcohol and his relapse may be an issue. He said that this time was different as he was more mature and open to understanding fully the effects on him and the family. He said that he has taken a good look at his life. While previously he thought it was okay to have drugs and alcohol, now he realises that taking drugs and alcohol did not fix the underlying issues.
12. The applicant claimed that speaking with professionals and participating in groups helps him. He believers continuing in this direction will help him refrain from drug and alcohol abuse. He added that with the knowledge that he now has he does not believe that he was addicted to drugs and alcohol but rather that he used it as a coping mechanism. He said that he did not know that before and that now he realises that the root causes require him dealing with his emotions and not turning to drugs.
13. The applicant claimed that he relapsed because of the company he was working for went into voluntary administration in May 2023 and that this led to financial strains and the pressure saw him relapse into alcohol and drug use and eventually his involvement in the supply of methamphetamine. The Respondent noted how poorly he had dealt with these pressures and how easily he became involved in drug supply. The Applicant's Representative argued that the applicant faced multipronged stressors which in turn led to poor choices but now with the right supports to prevent these same stressors and better awareness, the risk is reduced.
14. The applicant explained that at the time he only had part time work as a support worker on Saturday mornings, which was not enough to pay bills and a loan, he was covering the costs of the house in which his father was living, he was contributing to the household expenses together with Ms Stoker in their household, and making contributions to the victim's compensation fund from the 2007 offence, plus having to pay fines arising from traffic infringements.
15. The applicant acknowledged that he was old enough that he should have known better by the time he had committed the drug offence. When asked the last time that he took drugs, he said that it was the night of the arrest and the last time he had consumed alcohol was the weekend before the arrest.
16. An issue arose with regards to the applicant's responses in his intake assessment when entering immigration detention in which in response to the question, 'Do you use any recreational drugs? He answered, yes. The respondent suggested that he had not been truthful in claiming that he had not taken any drugs since being arrested noting that he had answered other questions that were similarly worded by saying no. The applicant answered that he misunderstood the question and took it to mean whether he had in the past. Unfortunately, the question is phrased unhelpfully, and I place no weight on this apparent contradiction.
17. The Respondent noted that his abstinence is largely untested in the community. The applicant in his written statement acknowledged this but notes: 'I can honestly say that it has been tested since the day I walked into prison and also while here in detention. I have refrained from substance abuse and have continued to work on myself so I can be the person I need to be for myself, my kids, partner, family and friends.'
18. The applicant's background has been put to the Tribunal as both a cause of his offending with an implicit inference that it is a risk factor as well as evidence that he has an ability to grapple with the past and move forward positively. These two perspectives may not be in tension in that his past, including a diagnosis of PTSD, depression and anxiety, are symptoms of a childhood with challenging circumstances but that they have been diagnosed, and acknowledged by the applicant allows for a pathway of managing the risks moving forward.
19. The most recent proposed treatment plan was discussed with a suggestion that it appears onerous and questions were raised of whether the applicant could meet it. He said that he would follow the plan, seek professional help, engage in support groups. He acknowledged that it has been a while since he read through the treatment plan but recalls that it does require speaking to the psychologist and that at that time the applicant agreed that it was needed and would help him. He acknowledged that he is not taking any antidepressants that are part of the treatment plan and that he has not spoken to the proposed psychiatrist since he last spoke with him while in jail. In other words, the applicant appears to have taken minimal steps identified in the treatment plan. He justified this by explaining that he was mentally preparing himself for this hearing and the possibility of a negative outcome. He added that he is not sure how the professionals associated with the treatment plan work and suggested he would seek to speak with them outside of work hours or hopes that the employer could accommodate work hour participation. He said that he will continue with Smart Recovery, an online program that he partakes, and has briefly looked at support groups in the Mt Druitt area. He said that given the chance to stay he would engage in support groups in his area to both hear other people's experiences and share his.

1. With regards to protective factors, the Tribunal received oral and written submissions from the following individuals who provided various motivations to supporting the applicant not to relapse or transgress the law. The below summaries provide insights into the nature of the relationship, their views on the applicant's journey and prospects, and in turn the strength of support that can be expected from them.

(a) Jorde Enosa: The applicant's adult son. He described the applicant as a good man who has made some mistakes, but he remains a good father. According to Jorde the applicant has used his own negative experiences to teach him valuable lessons in life. The applicant would always make time for him, he claimed, saying that they would do activities together, and in turn build a strong father-son connection. He does not want his father to miss out on his milestones in life nor does he want to miss out having his father at his milestones. While his father is in detention, he continues to speak with him as without him there is an emptiness. He told the Tribunal that they talk every day and despite his father being in detention the applicant remains in his life. He said that the applicant's absence has affected him 'heaps', especially as he is growing into a man and that it would be best for him that his father was present. He described being able to take walks or go to the gym with him as something that would help him mentally. He described his father as very influential in his life. He described him as, 'very wise', 'helps a lot', 'helps pick him up'. > > (b) Janaye Stoker: The applicant's partner. She described the applicant as a family oriented and compassionate man and dedicated father and partner. She began her relationship with him in December 2021. She described him as always making plans with the children (both his and hers) to take them to parks, the zoo or local farms during the weekends. Despite having a criminal history, he was able to get a job in disability support work as a casual worker while working full time in another job. She described his work in disability support as something he wanted to do to give back to the community. She also described the relationship the applicant has with his ailing father and that he has a strong commitment to support him including when they moved in together the applicant continued to pay the accommodation and utility costs for his father. She provided other instances of the applicant's family and community focus which is inferred to suggest his priorities towards family are a supportive factor. She described her son as having been bullied at school because of his body image and that the applicant would help him through this and other challenges. > > Ms Stoker gave evidence regarding her observations of changes in the applicant's behaviour. She sees a changed person crediting the programs he has completed, including since in Villawood when he has taken his own initiative to complete courses online. She said that when they first met, he did not talk about feelings, he would ignore problems thinking that they will go away, but now when they have issues and can not agree on something he addresses things differently, tells her how he feels, comforts her, they meet halfway. She believes that he has changed how he interacts with everyone. She said that family is everything to the applicant and that even when his former partner had the children through the week he would struggle to be apart from them. She stated that she was aware of some recreational drug use but not of the extent that it turned out to be, including the use of methamphetamines. > > Ms Stoker said that they were living together when he went through the challenge of losing his job and going to prison. She said that because he lost his job, she was working hard and would go to bed early. For this reason, she did not know what he was doing in the evenings other than usually going to the gym. She thought the change of routine, when they would both wake up together and start the day together was something that he was struggling with after he lost his job. She confirmed that he had not revealed to her the methamphetamine usage nor the drug debt, though she was aware that he smoked cannabis socially. > > (c) Cigdem Papagam: The applicant's former partner and mother of his two children. She provided a statement and appeared as a witness. Despite being separated, she explained that she remains in touch with him. She described the role he placed in her life and their children's lives. She noted that she has a 'strong' relationship with the applicant's current partner, Ms Stoker, including leaving the children with her over the weekends. She fears the impact of the applicant's visa cancellation would be catastrophic. Ms Cignam Papagam also believes that the applicant has changed, driven by his term in prison and separation from his children. She said that he does not argue over little things, that he has matured, and has a changed attitude. > > (d) Sean Lilomaiava: The applicant's cousin. He claims to have known the applicant since they were young. He described the applicant as a family man and a contributor to their cultural community. At the hearing he said that the applicant has a different outlook on life now. Sean explained that through his visits to the applicant he noticed that he is less angry, that he is reading the Bible, has deeper conversations and that they are more about the family and getting in touch with his cultural background. The cousin said that the applicant wants to be more involved in his church and community and that he wants to be a positive role model for community. He believes that the applicant is ashamed of what he has done. He said that it was through the applicant's negligence and behaviour that got him into trouble, and that he doubts that the applicant would return to the same circle of friends if given another chance.

2. The following witnesses provided written statements only. They were unavailable to appear at the hearing and without the benefit of their evidence being cross-examined I place less weight on their statements not only in this section but throughout the decision. I have provided brief abridged summaries of each:

(e) Sala Lafu: the applicant's mother. She provided a written submission on the applicant's upbringing and role in her life and the life of the children. She described the impact on her of the deportation of her youngest son and how he is no longer in touch with the family. > > (f) Paul Cheeseman: the applicant's stepfather. In the letter he speaks highly of the applicant and their relationship. He describes the applicant as being a good father and his family orientation. > > (g) Scott Lafu: the applicant's older brother. He described the applicant as a role model to both of their children and that he is the main caregiver for their father. > > (h) Amberle Griffin: Scott Lafu's partner. She described the applicant as being a loving and supportive uncle to their three children, Lennix, Menzy and River. > > (i) Chantelle Van Ryn: Ms Stoker's sister. She described him as having strong family values, hardworking and motivated and sincere. She wrote that he would 'go above and beyond for his family'. > > (j) Denver Jeffrey: husband of Chantelle. He described the applicant as being a 'dedicated family man and loving partner to my sister in law. He is actively involved in the lives of his children and provides them with support and guidance. His commitment to his family is evident and it is clear he deeply cares for them.' He noted that when he faced serious medical complications and was hospitalised Ms Stoker and the applicant had primary care of their son, Carson. The applicant would take him to daycare, to the park and on other activities. > > (k) Rino Lolomanaia: a family member. Rino is also a father and together they would take their children out on activities. He explained that he believes the impact on the family would catastrophic. > > (l) Nicolle Lowe: a long-time family friend of the applicant. She described his relationship to the children and her belief that he has a strong moral character. > > (m) Alison Parker: a close friend and work colleague. She described him of good character despite the offending. > > (n) Meallani Meti: a work colleague. She described him as a mentor who helped her achieve her professional goals. > > (o) Emmanuel Richards: a friend and work colleague. He described the applicant's approach at his work as being a major factor why many wanted to continue to work there and that he has only known him to be a positive contributor. > > (p) William Tooala: Director of Nesian Care, where the applicant worked as a support worker. He described the applicant as a good worker with a good character. > > (q) Reverend Palau Sinapa: a long-time friend and pastor. He suggested that the applicant's actions that led to his incarceration were a surprise to him as he knew him to be a good family man who upholds Christian morals and values.

3. A common view across the witness statements is that the writers were surprised to learn of the applicant's actions that led to the drug conviction and that they believe it to be out of character. Several witnesses who submitted statements referenced their belief that the applicant regretted his actions, felt remorse or that he has changed.
4. The applicant's partner, despite his incarceration, continues to support him and believes that he can change and provide a safe environment for her family. Based on the numerous letters of support from family members it is also clear that the applicant would be able to rely on an extended network to support him including his cousins, son's partner, adult son and adult stepdaughter.
5. The applicant remains in contact with the man who was in the car with him. He recalled that they were work colleagues and had both turned to drugs and alcohol. He claims that it was a big wake up call for both him and his friend. He had worked with the man for five years and believes him to be otherwise a good person. He said that both accepted the role they played in the offence, and that both took accountability for their actions. The other man is now in the community and is claimed to be sober and the applicant believes that the man would support him in refraining from substance abuse. This man has been to visit the applicant in both jail and immigration detention.
6. A further protective factor is employment and having a place to live.
7. The applicant said that he would live with Ms Stoker. He said that he would seek work and has an offer to join his son's scaffolding company. He said that he has a passion for men's health or the youth space and would seek to find employment there.
8. The applicant provided a letter from JS Scaffolding Solutions that 'guaranteed' work to the applicant were he to remain in Australia and that the work will be consistent including if required on weekends. I note that this business is owned by the applicant's son. While it could be interpreted cynically that he is offering employment, alternatively, it may infer that the son, who knows him best, has confidence in the applicant's work ethic and ability to remain sober and drug free. At the hearing Mr Jorde Enosa said that he would give his father a labouring role which requires a one-day course and possibly in the future a supervisory role.
9. On the file was a letter dated June 2025 from MW Building Group offered a mature-aged apprenticeship to the applicant. The author inferred knowledge of the applicant's legal troubles and directly referenced the purpose of the letter being for consideration in the matter of his visa cancellation. The author of this letter did not provide oral evidence, the applicant did not refer to it as an option and the letter is now six months old, as such I place minimal weight on it as nothing more than evidence that the applicant is considered employable.
10. The question arose as to how he would cope if he were to lose his job in the future. This time, he said, he has a support network, a plan for rehabilitation with professional help and a group with whom he will be able to speak with. He does not believe it will lead him on the same path he has travelled before.
11. The Respondent noted that the applicant had received a warning regarding his visa and yet continued to reoffend. In addition, related to being put on notice of the possible consequences of reoffending, the applicant's brother was deported from Australia in 2018 and as such was aware of the real possibility that he too could be. When this was put to him in the context of choosing to reoffend in 2023, the applicant responded, 'unfortunately, yes.'
12. The Respondent raised the applicant's driving offences from 2007. In doing so she referenced a decision by a colleague on the Tribunal, SM Tavoularis, in which the senior member notes the 'potential adverse impact arising from unlicensed driving' and the significance of 'attendant recklessness and indifference to laws and rules governing the operations of a motor vehicle.' I note that the Tavoularis decision considered the driving offences in the context of his applicant being unable to distinguish between right and wrong having accrued a series of driving offences. I am not convinced that the evidence in this matter lends to questions of the applicant's inability to distinguish between right and wrong. Nor for that matter, does it add in any manner other than marginally to the current considerations because he had driven without a license and unregistered and uninsured vehicle nearly two decades ago.

Conclusion: Protection of the Australia Community

1. The applicant began offending in 2006 and for a period through to 2015 he has exhibited a disregard for the law and the community. The offending during this period including family violence and it included participating in a robbery that involved detaining and harming a person. He has had driving offences and breaches of probation. The applicant did not remain long without offending when not in prison.
2. The offence that triggered this matter was one involving the supply of a prohibited drug at a commercial quantity. While the supply of a prohibited drug is not listed in the Direction as to be deemed very serious or serious, the Direction does provide leeway to the decision-maker to identify other conduct as serious or very serious. The Respondent argued that the nature of the drug supply offence, namely the amount of methamphetamine, was such that it should be considered very serious. I disagree. I find that the nature of the applicant's offending, which bore a three-year sentence, amounts to serious conduct.
3. The nature and seriousness of the applicant's conduct is deemed serious conduct on two occasions and very serious when considering the family violence. When considered together with his other conduct such as his driving violations and breaches of probation, I find that the nature and seriousness of his conduct weighs heavily when considering the protection of the Australian community.
4. As for the risk of further offences or in other serious conduct, the applicant's criminal history spans a wide range of conduct, several types of which are of a type that were he to engage in such conduct again would have severe impact to the Australian community.
5. In addition to considering the impact, I must also consider the likelihood. The applicant has expressed remorse for his past and most recent actions. This appears not to be a newly expressed emotion across his lengthy history of offending nor does undertaking classes and committing to not relapse into drug use. Could this time be different?
6. I note that the courses the applicant has completed have only be undertaken after the non-revocation decision. It was brought to the attention of the Tribunal that the applicant had in the past made commitments to remaining drug free and specifically, while engaging with a psychologist in 2011 after his first incarceration, 'He told me that his current incarceration had forced him to examine his pattern of alcohol use prior to custody, that he now recognised that his alcohol consumption patterns had been problematic, and he stated that he was willing to participate in alcohol counselling to teach him controlled drinking strategies, as well as address his underlying problems with emotional regulation and limited adaptive coping resources.'
7. A critical issue with regards to the risk of reoffending is that the applicant had been warned of the consequences of further offending, he had undertaken courses while he was in prison for the first offence and said that he knew what was expected of him, yet the circumstances led to a domino effect. He said that the pressure had gotten to him.
8. The applicant has expressed remorse not only in writing and words, but I note in his tone and by way of the content of his reflections on his behaviour. His narration of coming to a realisation of the impact of his offending and what had triggered it was a convincing journey of personal insight. While I accept the Respondent's assertion that the applicant has shown a disregard for the law, in the past, this has not been the case for the past ten years. I am satisfied that the applicant is genuinely remorseful. I am also satisfied that he understands what his personal risk factors are, including specifically drugs and alcohol.
9. I am satisfied that the applicant will seek to avoid getting himself into situations which could expose himself to these risk factors such as avoiding associating with people who could expose him to drugs (I find on the limited evidence before me that the applicant's co-offender who was in the car with him is not a risk factor and instead is a protective factor). I also acknowledge that the applicant has been drug and alcohol free since being incarcerated, but this has not been tested in the community.
10. I note that the 2023 offending was not one that the applicant sought, but it presented itself to him after having experienced what was rightly described as multipronged stressors. Were the same multipronged stressors to arrive again, even with the knowledge of his risk factors, would the applicant be susceptible to relapsing onto the crutch that drugs and alcohol appear to provide him.
11. In response, the applicant gave the following reasons why he believes that he would relapse.
    • The time that it has taken away from him being with his family and that he has missed a lot.
    • There has been a personal impact on him.
    • Although he knew before what was at stake, he had lost sight of that.
    • He wants to return to be with his children.
    • He wants to provide a better life for his family but at the same time realises that the life he had was enough.
    • He now understands how his emotions and feelings led to his drug and alcohol abuse and that as a result he needs to open up more to his family and accept being vulnerable.
    • He has found healthier ways to cope.
    • Being depressed and suppressing his feelings does not help.
    • He will seek professional help.
12. In considering this, I note that the protective factors include his knowledge of how to face such temptation, his involvement with community including church and cultural groups, a commitment to ongoing treatment programs, the extent of those committed to supporting him, employment, stable accommodation and his sense of purpose arising from being a father. Some may disappear, as they did in 2023 when he lost his job; those close to him may not be aware of the struggles and so be unable to step up, again, as in 2023 when his partner and friends did not know that he was taking hard drugs.
13. The Respondent rightly noted that the applicant had not been fully transparent with those close to him, firstly, in his drug taking, and secondly, regarding his past offending. I find it less likely, though, that his family and friends now knowing that they had stood by as he slipped through once, that they would not be more vigilant into the future. The witnesses who appeared, particularly the applicant's partner, Ms Stoker, and his son, Mr Jorde Enosa, came across as dedicated to the applicant and committed to supporting him more diligently. I note that their relationships with the applicant appear to have strengthened. For Mr Jorde Enosa due to his growing maturity, and for Ms Stoker, as she has continued with the relationship including building ongoing ties with his children. Turning away from these bonds or risking losing them is a strong motivating factor to ensure ongoing support to the applicant.
14. I place considerable weight on the applicant's desire to play a role in the children's life as a strong protective factor knowing that he will risk alienating them, his partner and the Australian government were he to reoffend again.
15. Overall, my assessment of the likelihood of reoffending aligns with that of the judge who sentenced the applicant and that is that he represents a low risk.
16. When considering the evidence as a whole across this factor, noting the nature and seriousness of the offending with a low risk, I place moderate weight against revocation.

1. The Direction informs decision-makers that the Government 'has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.' Further guidance is given as to when this factor is relevant and how to assess the seriousness.
2. The Respondent noted that the 2011 sentencing remarks include, 'The relationship broke up in 2006 and the child's mother obtained an apprehended violence order.' As a result of the AVO he was not allowed to see his son, Jorde, for two years.
3. The sentencing remarks continued, 'He breached that order, and this resulted in the s 9 bond he was serving at the time he committed the offence.' Within the Respondent's Tender Bundle is the relevant bond document that states, 'The Local Court has convicted the offender of the above offence [assault occasioning actual bodily harm] but has not imposed a sentence, but instead the offender is released upon entering this bond.' (HB-698)
4. The Respondent provided evidence regarding the nature of the offending which included strangulation in front of Jorde who was a child at the time, required a third person to intervene to stop the violence and that the victim had a 'red line that went from one side of her neck to the other.' The applicant acknowledged that at the time he was under the influence of alcohol. The victim wrote a letter of support noting that the actions of the applicant at that time were out of character. (HB-708)
5. The Applicant's Representative described the 2006 incident as occurring at a time of significant personal turmoil following the breakdown of his relationship. She noted that he expressed regret and remorse for breaching the AVO. It was noted that two decades have passed since then and there have not been any further incidents of family violence despite the applicant being in ongoing relationships.
6. The extent of the violence, the need for a third party to intervene and that it was committed in front of the applicant's child, suggests a serious incident occurred. Alternatively, the applicant did not receive a custodial sentence, it was a single incident some 19 years ago that has not repeated, and his then partner who was the victim wrote a positive character reference. When considered overall including the Direction's guidance, I place low weight against revocation.

The strength, nature and duration of ties to Australia

1. This factor requires the decision-maker to have regard to the strength, nature and duration of the non-citizen's ties to Australia. This includes considering the impact of the decision on the applicant's immediate family members in Australia as well as other ties to the Australian community. The Direction provides guidance that notes as relevant how long the applicant has resided in Australia and whether they arrived as a child.
2. The applicant has lived in Australia since he was 14 years old. Since arriving to Australia 25 years ago he has never returned to New Zealand. He has a range of family members living in Australia including his parents, stepfather, one brother, three biological children, his current partner and his former partners who is the mother of his biological children. He also has stepchildren, cousins and other relatives. The evidence supports the view that he has ties to Australia ranging across family, employment, culture, religion and social.
3. With regards to his ties to the Australian based family he is claimed to be actively involved in the children's upbringing and welfare. It is claimed that he provides support to his former and current partners in their roles as parents, further details are provided below, in the section 'Best interests of minor children'. It is claimed that the applicant's connections in Australia are deeply rooted as he arrived as a teenager and has built a life in Australia. The Applicant's Representative noted that the applicant had become culturally and linguistically integrated and has been employed and a tax paying resident.
4. The applicant has elderly parents who are claimed to be Australian permanent residents. The Applicant's Representative claimed that their health is deteriorating and that they need ongoing care and support which the applicant has been providing to date including caring and financial support. The applicant explained that he played an important role in his father's care and prior to imprisonment he was paying for the accommodation where his father lived. His father is currently living with a relative, but the applicant was not sure whether the relative would be able to care for the father long term. He said that he wants to care for his father.
5. It was claimed that the stepmother, Ms Stoker, would face significant challenges raising their children alone. Ms Stoker explained that following the applicant's incarceration she started working a second job (every second weekend) to cover costs as she could not afford the rent increase, she borrowed money to move to another home. Whereas they used to go away on weekends they can not afford to anymore, and she noted that the children are not wearing brand name shoes and instead are cutting back on extra-curricular activities.
6. Both the applicant and his current partner, Ms Stoker, have the view that their relationship would end were he required to return to New Zealand. Ms Stoker explained that her family is here, her job is here. She said that she has a career that can not be transferred because in Australia a diploma suffices for her role, but in New Zealand a degree is required. Connor being in Year 8 was another reason not to move. She said that her mother has mental health issues, and she provides support to two elderly grandparents. With regards to maintaining a long distance relationship, she said that they can barely afford petrol most weeks let alone flights to New Zealand.
7. In addition, it was claimed that the applicant's adult children would be deprived of a father figure. Mr Jorde Enosa claimed that his relationship with his father has only become stronger through the period of the applicant's incarceration. He noted how he would not be able to travel to New Zealand because it would be hard and financially difficult noting that he has only been once or twice with his grandmother when he was young. Furthermore, he has a company employing six people full time which limits his ability to pick up and leave Melbourne.
8. The applicant's stepdaughter, Ela Papagan, who is 19 years of age gave evidence at the hearing. She lives separately from her mother. She said that the applicant has been a father figure who has shown complete dedication to the role and treated her as his own child. She said that since she could remember, he was always available to her. She said that his absence has affected her as she has grown up. She said that the last time she spoke with the applicant was this morning as she was at her mother's house.
9. At the hearing the applicant said that his removal would impact the entire family. He noted that his parents have had another son deported to New Zealand and that separation from him would increase the impact on them. He noted that the younger children (both minors and adults) would struggle to stay in touch with their culture without his presence.
10. The Respondent accepted that this factor weighed in favour of revocation but fleetingly made the case that it should only weigh slightly. The Applicant's Representative suggested it should weigh heavily. In considering how much weight to place on this factor, I note that the applicant has not returned to New Zealand in twenty-five years. While this factor is not concerned with the nature and duration of ties, he has in New Zealand it is evidence that the applicant has committed to Australia. The applicant is not a cosmopolitan internationalist equally comfortable in New Zealand as in Australia. He has built his life in Australia and has established family and social links here. The Direction also looks to the impact that cancellation would have on close family members. In this case the impact is wide reaching affecting two families, adult children and as will be considered further below, minor children. It will also impact his parents who have already lost a son through this process. For these reasons, I place moderate weight in favour of revocation.

Best interests of minor children in Australia affected by the decision

1. The Direction requires decision makers to consider whether a cancellation, refusal or non-revocation 'is, or is not, in the best interests of a child affected by the decision.' The Direction provides a list of relevant factors that must be considered when weighing the bests interests of the child including the nature and duration of the relationship, the extent to which the applicant is likely to play a positive parenting role, whether the past and likely future conduct will have a negative impact on the child, the effect of separation on the child, whether there are others who fill the role of parent, the views of the child and any evidence relating to family violence or trauma arising from the applicant's conduct.
2. The applicant has two minor children (aged 6 and 8) who are his biological children and one minor stepchild (aged 14). He also has five nieces and nephews in Australia (Menzy Tau Lafu, River Rae Fia Lafu, Carson Phillip Stoker, Caleb Pita-Etueni, Mason Lolomanaia).
3. Ms Cigdem Papagam appeared before the Tribunal to give evidence about her minor children. She said that the applicant was a very good father, that he pays attention to the children and that the children love him. She described their relationship when they were together as very good but even after their separation they stayed friends. She described the role the applicant would play in the children's lives when they were living together as doing pick up from school (including her elder daughter, Ela Papagam), assist with homework as she feels that her English is not good enough, and provide financial support. She said that the impact on the children of his permanent absence would be big especially as he would be missing their birthdays and school events. She described their older daughter as regularly crying over her father, so much so that she is considering taking her to a doctor to seek help. She said that the applicant currently speaks to the children daily but before it was once a week believing this change arose from a move from prison to immigration detention.
4. With regards to sources of support were the applicant to be removed to New Zealand, she noted that her daughter, Ela, helps, but she has a job and commitments. Ms Stoker also helps when there are issues to do with school and that the daughters stay with her every second weekend.
5. With regards to the possibility of visiting the applicant in New Zealand, she said that they would not be able to go due to their financial situation and that she would not send her children alone. Nor would she move to New Zealand as she has her daughter in Australia, she has never been to New Zealand and that she does not want to be away from her own mother.
6. In addition, it was claimed that disrupting their lives by requiring them to travel to New Zealand despite being integrated into the community in Australia would undermine their education and stability and impose emotional strain on the applicant and partners. I question the inference in this supposition. It appears the Applicant's Representative is suggesting that any child who travels away from their home to be with grandparents, another parent or even on some form of activity, is adversely impacted. Without further evidence this proposition appears counter intuitive.
7. She said that the family are facing financial difficulties, including having to leave their house due to not being able to pay rent and now staying in a granny flat as that is all that she can afford. She said that she used to pay $375 a week in rent but now, for the same place, it has gone up to $490, whereas the granny flat costs $300. Questioning by the Applicant's Representative and the Respondent became drawn into whether it was the rent increases and not the loss of financial support from the applicant that drove the move into the granny flat. When considering this, I note that finances are fungible and that it is near impossible to disaggregate the causes when there are so many variable factors. It is a given that with more money the family would have more choices but whether they would have chosen to move to the granny flat and spend the money elsewhere or save elsewhere and stay in their home is speculative. Instead, I find that the loss of a source of financial support has impacted the opportunities available to the family and the children.
8. Since separating, the co-parenting arrangement they agreed to and had practiced until his incarceration was that the applicant would pick up his two biological children on Thursdays and drop them off on Mondays. She indicated in oral evidence that she was considering making the arrangement a week every second week because, she reasoned, it would be important for the children to rebuild their relationship with the applicant and as such longer stretches of time together would be beneficial. The applicant suggested that he would seek majority time with the children in discussion with the mother.
9. As noted, Ms Stoker continues to have the applicant's biological children stay with her every second weekend since starting her second job. Based on the time with her, she noted at the hearing the struggles of the two children. According to Ms Stoker, Amira struggles to sleep and cries constantly for her father. Ms Stoker said that Amira is the closest to her dad. She struggles to understand why her father is not home and has started to wet her bed again. She used to be outgoing but now is very shy and just wants to stay at home. The youngest child, Ariya, also struggles to understand what happened to her father. When they visit, she wants to sleep over with him. She wrote that he always sought to provide the best for his daughters and funded all their schooling expenses as well as 'stability and a safe, healthy and loving home.'
10. Ms Stoker said that despite the applicant having gone to prison more than once in the past, he is a good role model. She said that she believes in forgiveness, giving people grace, empathy and understanding. She said that she believes in rehabilitation and that people can change. Ms Cignam Papagam said that while his past is not a good example for the children, she believes that he has changed and that getting older has made him learn a lesson.
11. The children are claimed to rely on the applicant for emotional, physical and mental assistance. It was argued that without the father the children would lose the daily presence, guidance and support that he has offered to date and that the children would lose the stable and loving relationship of both parents.
12. With regards to the applicant's stepson, Connor, who is the son of Ms Stoker, she has acknowledged the applicant as being his only father figure. The applicant believes that his parenting role towards Connor would return to as it was in the past if he is allowed to remain in Australia. Connor, Ms Stoker, noted has abandonment issues from his biological father leaving and were the applicant to go to New Zealand, it would be a 'big hit' and 'really hard' for him.
13. It was claimed that the applicant has been present in Connor's life for 'many years' although this appears to be best described as a few, and that the applicant's removal would deprive him of a stable male role model. The mother of the 13-year-old described the situation her son has faced and the role of the applicant in his life:

When I met Teata I was a single mother to a 9 year old boy, Connor. Connor 's father has been absent from his life since he was 2 years old, by his fathers choice, Connor has no memory of him. Teata instantly formed a connection with Connor and they would talk about football and bond over both supporting the same NRL team. Teata would often help out with Connors school pick up or drop off as I have always held a high demanding job and this has always been a struggle for me to manage but Teata was more than happy to help. > > Teata would have conversations with Connor that a father would have with their son about friendships, respect, and helping out around the house. Teata has taught Connor how to mow the lawns, kick and throw a football, helped him with homework and supported him through tough times at school when he has been bullied in the past. Teata would take Connor to weekly boxing classes when he was struggling with his confidence and image of himself and was always encouraging of Connor. Teata and Connor have a close relationship which has continued since Teata was incarcerated. Connor looks at Teata as a father figure that he had never had before. Connor speaks with Teata on the phone multiple times a week, joins into video calls and often travels to visit Teata in person.From this passage it is relevant to note that the relationship between the applicant and the 13-year-old is broad ranging from practical roles such as pickups and drop offs through to what could be described as moulding a new generation through what he teaches the child. In this regard, it became relevant to understand how the applicant explained to the child about the choices he had made and what type of role model he perceives himself to be.

14. The applicant's current partner also stated that were the applicant to be removed to New Zealand it would be the end of their relationship and in turn the end of the opportunity for the 13-year-old to have a father figure in his life. She noted that the child's grandfather passed when he was young and so losing the applicant would again remove a father figure from his life. She stated that she was 'deeply concerned on the impact that would have on him and his psychological wellbeing'.
15. The applicant's partner described her son, who is an only child, as loving having two stepsisters in his life and that the three children have a bond as if they were full siblings raised together from birth. The applicant's removal would impact these three children adversely in that their relationship as a blended family would be broken.
16. Research was submitted of the importance of involved fathers in the raising of children. This is presumably axiomatic and instead the relevant issue is whether the applicant can and will continue to provide the 'active and nurturing style of fathering' described in the article as being so beneficial to both sons and daughters.
17. The daughter of the applicant's former partner and stepsister of his two biological children, Ela Papagan, provided a letter that described the applicant's parenting. Her statement notes that he had taken on a fatherly role with 'complete dedication', he provided a 'safe, stable, and loving home' and made sure that they had food on the table and comforted them through their lives. With regards to the applicant's role with her sisters, who are minors, she wrote that the applicant is 'their rock, their provider, and their protector.' She does not believe that her mother is 'in a full position to care' for the two minor children on her own. The consequence of an absent father would severely impact their 'well-being, development and emotional security.'
18. A cousin, Lisa Tema, wrote of the applicant's parenting:

One of the strongest qualities I have always admired in Teata is his dedication as a father. As a teenager, he took on the responsibility of raising his child largely on his own. His eldest child is now an adult, and Teata has continued to be a supportive and present father. He also has a young family now, and I firmly believe that his continued presence in Australia is essential not only for him but especially for his children, who rely on him and love him.

19. Another cousin, who made both oral and written submissions, said at the hearing that the applicant's daughters 'desperately need him'.
20. The applicant claims to have maintained contact with his children through his detention. He wrote that he is committed to 'resuming my role as a caring and responsible father and stepfather and to continuing to support their education, development, and overall welfare. I have learned so much about myself and I want to be able to help my children to understand emotions better as I believe that not being able to deal with them led me to make bad decisions.'
21. At the hearing he said that while in detention he has daily contact with his children through phone or video chat. With the young daughters he plays Roblox and talks at the same time as just talking on the phone would be boring for them. The daughters come for contact visits with him. He speaks to his son Jorde and tries to pass on knowledge to him as he is seeing him go through the same emotional journey.
22. The issue to consider is what is in the best interests of the child, and this heavily relies on an understanding of the quality of parenting the applicant has afforded the children in the past and his commitment into the future. I note that the adult children, Jorde and Ela, provided strong submissions to the positive influence the applicant has had on their lives. This weighs heavily in any consideration of the applicant's parenting as it is nearly inconceivable that as young adults, they would choose to take the time to make submissions and appear before the Tribunal if the applicant had not been a good father to them. I note also in considering the circumstances of the minor children that the mothers of the children provide laudatory submissions on the role the applicant played in the lives of the children and the families. The applicant's evidence in both the content and tone shows someone who values family life. It is believable that he is the father described by the adult children and the mothers. I note also the comments by close observers such as the cousins who praise his parenting role.
23. The Respondent asserted that as he has continued to offend it is unlikely that he will play a positive role in the children's lives and added that this includes the risk of relapsing into drug use. Furthermore, she noted that the children could maintain a relationship with the applicant through electronic means.
24. In weighing the evidence, I find that any minor children would not see the applicant for an extended period, likely until they are at least 18 due to the financial struggles of their parents and possibly longer as they would need to be financially capable of independently taking time to travel to New Zealand.
25. In considering what is in the best interest of each of the minor children individually, there being three who see him as a father figure, and five nieces and nephews, I find that the best interest lies in having the applicant remain in Australia.
26. Weighing heavily in favour of revocation is that the children for whom he would be a father figure are young and so the length of time that they would still benefit from having him in their lives is long. As does that he has played a highly positive role in their lives, the negative impact his absence would have on their lives and the absence of immediate alternate father figures.
27. Weighing in the opposite direction is that the children have parents, and these parents have family. The impact of the applicant's behaviour has deprived them of a father for more than three years including affecting the families' income and in turn financial freedom.
28. When considered overall, noting that there are three minor children for whom it is in the best interest that the applicant remains in Australia, I place considerable weight in favour of revocation.

1. The Direction details the expectations of the Australian community which must be taken into consideration by the decision-maker. The Direction notes that 'the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.'
2. Relevantly, the community expectations detailed in the direction are deemed to be the expectations of the community as a whole and the decision maker should not be independently identifying what the community's expectations are.
3. The Respondent argued that the expectations of the Australian community were for the applicant to no longer hold a visa as he has failed to meet the expectation to obey Australian laws. In addition, the Respondent noted the nature of the offending and that it included imprisonment further suggesting that the Australian community's expectations are for the applicant not to hold a visa.
4. The Applicant's Representative argued that the Australian community had a broader set of values than what are included in the Direction and that they extend to such matters as rehabilitation, maintaining a family unit and giving second chances.
5. In addition, the direction states, that cancellation or non-revocation of the mandatory cancellation 'may be appropriate simply because the nature of the character concerns or offences is such that the Australia community would expect that the person should not be granted or continue to hold a visa.' The direction explicitly lists the types of conduct that would fall under this consideration. Relevant to the applicant's offending it includes family violence. The direction notes that these expectations of the Australia community 'apply regardless of whether' the person poses a measurable risk. There is no suggestion that the passage of time dulls the expectations of the Australian community.
6. On the basis of the expectations of the Australia community, I place considerable weight against revocation.

1. There is no claim by either party, nor does evidence arise from the material, that there is a risk of a breach of Australia's international obligations regarding non-refoulement obligations or any other legal obligations were the decision not to be set aside.
2. The Respondent noted that the legal consequences to not revoke the cancellation is that his visa will be cancelled, and the applicant will be liable for removal to New Zealand. But I raised with the Respondent that there are other legal consequences arising from a possible non-revocation of the applicant's visa. These include s.32(2)(a)(ii) of the Act which reads:

(2) A criterion for a special category visa is that the Minister is satisfied the applicant is: > > (a) a non-citizen: > > (ii) is neither a behaviour concern non-citizen nor a health concern non-citizen; or

3. 'Behaviour concern' is defined in s.5(1) as a person who has been 'convicted of a crime and sentenced to death or imprisonment, for at least one year; or has been convicted of 2 or more crimes and sentenced to imprisonment, for periods that add up to at least one year...'. Based on the applicant's past offending, the applicant would be considered a behaviour concern non-citizen.
4. In addition, the Respondent identified at the hearing Special Return Criteria, 5001, as being a further block. This criterion, if required to be met, would prevent the applicant from returning. The Respondent argued that this does not close the door on the applicant as there are other visa pathways including the Minister's wide discretionary powers to grant visas, protection visas and special purpose visas. She argued that neutral weight should be placed on this as any limits on the applicant's ability to return to Australia reflects the Act operating as it was planned to do so.
5. At the hearing a brief discussion entailed about the visas which the applicant would be eligible to apply for offshore. The protection visas initially identified are onshore visas and as such not relevant. Instead, the offshore protection visas, being the subclass 200 visas such as the women at risk and other humanitarian visas do not require meeting the 5001 criterion. But as noted at the hearing there is no evidence before me that the applicant would be able to meet the requirements of these visas. Nor would a special purpose visa reserved for airline and maritime crews and military personnel be open to him. While it is possible that his circumstances may change or the situation in New Zealand may change such that people such as the applicant face persecution, this seems highly unlikely.
6. Being barred from returning to Australia in the near term and most likely for the foreseeable future is a serious imposition especially considering the applicant's circumstances. This factor can not be viewed in isolation - the legal consequences arising from a bar to return has a far greater impact on a person with ties to Australia than to someone without. As such any consideration of this factor needs to be in the specific context of this applicant. While the Respondent is right in arguing that it is the intention of the legislation that people with character concerns cannot enter Australia, I note that it is also the intention of legislation to allow for revocation of a cancellation based on discretionary considerations guided by a Ministerial Direction. As such, when considering the weight to be place on this, I find that cancellation would have a far-reaching and long-lasting impact such that I place considerable weight in favour of revocation.

1. The Direction requires the decision-maker to consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country. This should be considered in the context of the applicant's age, health, any language and cultural barriers, and whether there are social, medical and/or economic support available in their home country.
2. At the hearing the applicant detailed what he believed to be the hardships he faces were he to return to New Zealand. These included not having a support network and effectively having to start afresh. He referenced the certificates he has in Australia and was unsure if they would be valid in New Zealand. He noted that he would have to provide police checks for some jobs and that would create a further impediment. He claimed that such a move would impact his mental health.
3. The applicant said that he would seek to rebuild his life in New Zealand, seek employment, engage in the same support groups as those planned for in Australia. He said that he needs to be a better person for himself and for his mental health. He said that he would continue to seek to support his children from New Zealand. He said that he will need support to deal with the emotions of being separated from his children. He said that he has stayed in touch with some who have been deported from Australia and is getting information about their journey.
4. He said that he tried to reach out to his brother but has not heard from him for a long time. He said that he is unsure why.
5. The Respondent noted that the applicant is 'relatively young' at 39-years-old. While he has been diagnosed with PTSD, mixed anxiety and depressive disorder he is otherwise healthy. He would not face any language or cultural barriers in New Zealand and that the health and welfare services of New Zealand are comparable. With regards to finding work, that he would have to provide a police report exposing his criminal would not be different to the circumstances in Australia. Despite these challenges, he has undertaken work that could open pathways to employment in New Zealand. The Respondent acknowledged that the applicant would face difficulties but that they would not be insurmountable.
6. The applicant acknowledges that he does not face age, language or cultural barriers to living a life in New Zealand. But emphasised that he does not have a meaningful support network in New Zealand and no community ties as he came to Australia at the age of 14. It was argued that the absence of familial support would leave the applicant socially isolated and vulnerable in part because of his rehabilitative needs and the impact of being separated from his family would have on his mental health.
7. The applicant's partner wrote in his statement that the applicant's brother who was departed in 2014 has been unable to secure employment and has been sleeping rough. He has seen a deterioration in his mental health. The brother broke ties with the Australian family some three years ago according to the applicant's partner. She fears the same for the applicant because like his brother, he has no one to provide support in re-integrating into society.
8. In considering the extent of impediments he faces, while they appear challenging to the applicant and those who made submissions arguing this point, when considering that New Zealand is a country not dissimilar to Australia in language, culture and governance structures, the move to New Zealand, while confronting, does not pose challenging impediments. The impediments listed are manageable and can be overcome by someone in the applicant's circumstances. He is young, capable of working hard, equipped with experience and skills that have seem him find various employment, and mature enough to be valued while not being perceived as too old. While contacts are lacking, and it appears his brother fell through the cracks, I am satisfied that such impediments to resettlement that this raises is minimal. When considered overall, noting the low-level impediments, I place minimal weight in favour of revocation.

1. No submissions were received regarding any impact non-revocation would have on Australian business interests and as such I place neutral weight on this.

1. The applicant does not pass the character test under s 501 of the Act and the Tribunal must consider whether there is another reason why the decision to cancel his visa should be revoked having regard to the Primary and Other Considerations in the Direction.
2. In turning my mind to the overall finding, I note Paragraph 7 of the Direction which states:

7. Taking the relevant considerations into account > > (1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. > > (2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, Primary considerations should generally be given greater weight than the other considerations. > > (3) One or more primary considerations may outweigh other primary considerations.

3. Acknowledging the guidance from Paragraph 7, I place greater weight on the factor, the Protection of the Australian Community (8.1), and find no reason for the Other Considerations to be weighed equal to the primary considerations.
4. Noting that one or more primary considerations may outweigh other primary considerations, I place greater weight on the findings under the Strength, Nature and Duration of Ties to Australia (Paragraph 8.3) as the applicant has wide and interdependent ties into the Australian community and greater weight on the findings of Best Interests of Minor Children (Paragraph 8.4) as there are three minor children whose interests are best served were the applicant to remain in Australia.
5. While the applicant has a long history of criminal activity which is relevant to a number of factors, and is prominent in the principles, I note that his overall criminal history is heavily skewed to offending from some ten ago.
6. Taking into consideration all of the findings of each of the factors alongside the principles and guidance in the Direction with regards to taking the relevant considerations into account, I find that the reasons to revoke the cancellation outweigh the reasons not to. As such, I find that there is another reason why the mandatory cancellation of the Subclass 444 Special Category visa should be revoked.
7. The Tribunal sets aside the decision under review and in substitution decides that there is another reason to revoke the mandatory cancellation of the visa.

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

[1] Ms Dalpadado referenced in submissions Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 regarding the use of the term privilege in this context.