Harris and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 753 (1 April 2021)

(b) Property Offences: aggravated burglary and commit (15 August 2019); possession of stolen or unlawfully obtained property (19 August 2019); criminal damage or destruction of property (17 December 2019);

(c) Driving and traffic offences: no authority to drive - never held (5 February 2015); no authority to drive - never held and disqualified (10 March 2015); failed to stop when called upon to do so - circumstance of aggravation, reckless driving - dangerous to public or person (to escape pursuit), no authority to drive - never held, no authority to drive - never held Australian license and is disqualified (18 May 2016); no authority to drive (never held) (29 October 2018); no authority to drive (fines suspended) (22 November 2018); no authority to drive (fines suspended)

(d) Offences involving public officers and police orders: fail to obey an order given by an officer (19 August 2019);

(e) Firearms offences: unlicensed person possess firearm/ammunition, two counts any person in possession of any firearm/ammunition and is not the holder of a licence/permit commits a crime (18 May 2016).

1. The Tribunal notes the Applicant has a juvenile record which has been relied on by the Respondent, and taken into account by the Tribunal only for the purpose of establishing the time that the Applicant began offending in Australia. Accordingly, the Applicant's juvenile record has not been included in the summary of offences.
2. The details of the Applicant's offending are considered further below.

1. The Applicant accepted that he does not pass the character test.[33]
2. As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a 'substantial criminal record' as defined by s 501(7). Relevant to the Applicant's case,

a person has a substantial criminal record if they have been 'sentenced to a term of imprisonment of 12 months or more' (s 501(7)(c) of the Migration Act). 3. The Applicant has been sentenced to a term of imprisonment in excess of 12 months and, as a result, has a substantial criminal record as defined in s 501(7) of the Migration Act. Therefore, he does not pass the character test under s 501(6)(a). 4. The Tribunal is not satisfied that the Applicant passes the character test (see

s 501CA(4)(b)(i) of the Migration Act).

IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?

1. As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then consider whether, having regard to the primary and other considerations in Direction No 79, there is another reason why the Cancellation Decision should be revoked.

Protection of the Australian community (para 13.1 of Direction No 79)**

1. Paragraph 13.1(1) of Direction No 79 provides that:

(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

1. Paragraph 13.1(2) provides that consideration should also be given to two issues: the nature and seriousness of the Applicant's conduct to date; and the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
2. In summary, the Applicant submitted the following with respect to his risk of reoffending:
   • he accepted his offending record 'would be viewed as serious';[34]
   • his rehabilitation while in prison mitigates his risk to the Australian community;
   • his offending was linked to his addiction to methylamphetamine and occurred over a three-year period. He is now clean and sober and engaging in rehabilitation to deal with the causes of his offending;
   • his risk of further offending was low, having regard to the steps he has made in rehabilitation, the strengthening of his relationship with his family, his reengagement with Christianity, his connection to Maori cultural support groups (which has been strengthened in prison) and his efforts in 'building himself professionally' in prison including working in the prison as a head chef and mentoring other inmates in this capacity;[35]
   • his acknowledgement of the offending, his guilty plea at the earliest opportunity, his deep remorse for his offending and his acknowledgement of the damage drug trafficking does to the community;
   • the impact incarceration has had on the Applicant including separation from his family, in particular his daughters and granddaughter;
   • his positive conduct in prison demonstrating good character and positive work skills, which he would utilise in the community on release from prison;
   • the strong prosocial support which the Applicant will receive from family, friends and extended community groups upon release from prison including a plan for housing, work and rehabilitation which further mitigates the risk of reoffending; and
   • the fact that the Applicant was in the community and drug free for a period of 10 years, indicating his capacity to live a drug-free prosocial life with family and community support.
3. The Respondent contended that the Applicant's offending should be viewed very seriously having regard to Direction No 79. Further, the Respondent contended that the Applicant's history of offending and conduct, including evidence of violence against domestic partners, should be viewed seriously. The Respondent contended that the Applicant's drug offending was serious and presented a significant risk to the Australian community, including when combined with his history of serious firearms offences and aggravated property offences. The Respondent further submitted that the Applicant's history of traffic offending was serious and demonstrated a reckless disregard for Australia's laws and was a significant risk to the community. The Respondent contended that the serious nature of the Applicant's offending and of the consequences which could flow from any repetition of such offending mean that the community should not be expected to tolerate any risk of similar offences being repeated. In any event, the Respondent submitted that limited weight should be placed on the Applicant's claimed efforts at rehabilitation and remorse, given that his rehabilitation was untested in the community and he had relapsed following previous periods being drug free including his previous period of 18 months' imprisonment in 2015-2017. In such circumstances, the Respondent maintains that the Applicant remains an unacceptable risk to the Australian community.

Nature and seriousness of the conduct (para 13.1(2)(a) of Direction No 79)

1. Paragraph 13.1.1(1) of Direction No 79 provides:

(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to factors including:

1. The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
2. The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

1. 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;

1. Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes; 2. The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness; 3. The cumulative effect of repeated offending; 4. Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending; 5. Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour); 6. Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.

1. In considering the protection of the Australian community the Tribunal must give consideration to the nature and seriousness of the Applicant's offending and other serious conduct.

1. As noted above, the Applicant was convicted of the offence of 'sold or supplied, or offered to sell or supply, a trafficable quantity of methylamphetamine' on 24 July 2020, after pleading guilty. Having regard to the sentence imposed, this was arguably the most serious of the Applicant's convictions though it followed the convictions which gave rise to the Cancellation Decision.
2. In her sentencing remarks, her Honour Lonsdale DCJ summarised the facts of that offence as follows:[36]

... in late September, police obtained warrants to intercept your telephone. And on Saturday, 6 October 2018, a person by the name of [name omitted] contacted you to buy methylamphetamine.

Subsequent telephone calls reveal that [name omitted] sought to purchase two ounces of methylamphetamine; that is, 56 grams, for between $5,300 and $5,000 per ounce. ...

On 19 October 2018, you were arrested and your mobile telephone was seized. Police contacted you on 4 January 2019, and you were offered an opportunity to participate in an interview. But you declined to do so and you were then arrested.

1. Having noted the Applicant's apparent remorse and efforts at rehabilitation, her Honour referred to the very serious nature of the Applicant's offending for the 24 July 2020 offence in the following terms:[37]

Your offending, however, was very serious. It involved the sale of a large quantity of methylamphetamine. You were motivated I find to some extent by financial reward, albeit that I'm told that you were to only receive about $600 as partial relief for a drug debt.

1. Her Honour accepted that the Applicant was appropriately characterised as a 'mid-level drug dealer' and not a 'go-between' as suggested by his lawyer. Her Honour considered that:[38]

... the fact that you may have acted effectively as a facilitator does not in my view diminish to any significant extent your culpability. By doing what you did, you played an important and integral role in the distribution of drugs by effectively brokering a deal between two people known to you.

1. Her Honour also acknowledged the Applicant's 'difficult childhood' including his parents' drug use, his history of consistent employment and relatively stable decade without offences on his record. She also notes his offending history including his prior conviction for supplying methylamphetamine.[39]
2. As noted above, the Applicant was also convicted of the offences of 'Aggravated Burglary and commit' and 'Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine)' on 15 August 2019, after pleading guilty. Those were the convictions which gave rise to the Cancellation Decision.
3. With regard to the 'Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine)' offence, according to her Honour Sweeney DCJ's sentencing remarks the Applicant was found in possession of a 'sizeable quantity' of 12.8 grams of methylamphetamine at 67 per cent purity.[40] The Applicant was also in possession of three empty medium-sized clipseal bags, a Samsung mobile phone that he refused to give police the code for (giving rise to the failure to obey a police order offence) and $3,000. Her Honour accepted that the Applicant had won the cash at the casino as part of overall winnings of 'some $12,500-odd' amount. Her Honour accepted for the purposes of sentencing that the Applicant was able to purchase the drugs for himself and further found:

... that you would have shared some of it with mates who had previously shouted you without having to take money off them in order to recoup your expenses, the State accepts you would have used some of the drugs for yourself and you would have supplied to friends for free.

1. Her Honour noted that the maximum penalty for the offence was 25 years' imprisonment or a $100,000 fine or both.
2. In assessing the seriousness of the 'Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine)' offence, her Honour held:[41]

... I'll take into account that your intent to supply that drug was not a commercial one, and that, because of your big win at the casino, it meant you could afford to buy big, which then meant, of course, you were caught in possession of a much larger sum of methylamphetamine than you ordinarily would have been.

It's still a serious offence, because it still involved you being in possession of 12.8 grams, a pretty reasonable amount, with an intent to supply. Even though it was not on a commercial basis, your intent still involved the supply of this very harmful drug to others.

But the offence is less serious than it would have been, had you been intending to sell this drug for profit. And I will take that into account in your favour. And I will also take into account that, for a person who has a problem with drugs, winning a sum like 12 and a half thousand dollars at the casino, which can then be cashed, is obviously not a good thing, though I'm sure it felt like a good thing when it occurred. I'll also take into account that there was a degree of cooperation on your part with the police, and that you made admissions. ...

Although the quantity of drugs is not modest, and would ordinarily attract a longer sentence than I am about to impose, taking into account the intent to supply only, as opposed to any commercial intent, and also taking into account that the quantity and the relevance of that is informed by the fact, as a serious drug user, you had a win of 12 and half thousand dollars. And I can accept that that was just too big a temptation for someone who was using drugs. But that meant you ended up with a bigger quantity than you would otherwise have had.

1. Her Honour also noted the need for general deterrence with respect to the offence given the harm methylamphetamines cause to the community:[42]

There is a need to impose a sentence which deters you from continuing to be involved in drugs. There is a need to send a message out to the community that if you're in possession of methylamphetamine with intent to sell or supply that to others, you'll be met with serious punishment, because of all the harm that drug does to the community.

1. In considering whether it was appropriate to impose a suspended sentence in relation to the supply of methylamphetamine offence, her Honour stated:

... the seriousness of that offence dictates a term of immediate imprisonment, as does the fact that you face the other serious offence of the aggravated burglary.

1. The Applicant had a history of earlier drug offences including for 'possess prohibited drug' and 'possess prohibited drug with intent' in 2005 and 'Possess a Prohibited Drug (Amphetamine)' in 2015. He was also convicted of 'Possess Drug Paraphernalia containing a prohibited drug/plant' in 2016 and 2019 and 'Possessed a prohibited drug' in 2018.
2. The Tribunal acknowledges that the Applicant had a period without recording any drug convictions between May 2005 and March 2015. This is to be commended. The Tribunal also acknowledges that the Applicant had a difficult childhood and that there is a strong history of drug use and/or abuse in his family. However, while this may provide some explanation for the Applicant's drug use it does not, in the Tribunal's view, reduce the seriousness of the Applicant's drug offending. In this regard the Tribunal notes that the Applicant has been convicted of a number of drug-related offences over a number of years, that his offending has increased in seriousness from possession to trafficking and that his offending has continued despite previous convictions.
3. Further, the Applicant's offending suggests that he has consistently been involved with not just drug use but possession with intent and ultimately dealing in drugs. In cross-examination, the Applicant conceded that he had been involved in drug-dealing.[43] Drug offending that contributes to the sale and supply of methylamphetamine is serious, in part due to what has been previously described by the Tribunal as the 'devastation inflicted on the community as a result of the production, distribution and use of methamphetamine'.[44]
4. The Applicant conceded that his offending would be viewed as serious and the Tribunal considers that with respect to his drug related offending, his offending and conduct was very serious. In the Tribunal's view this is also reflected in the sentences that the Applicant has received including his most recent sentence of four years' imprisonment. That sentence took into account the fact that the Applicant was already serving a sentence of over two years and was discounted accordingly. Her Honour Lonsdale DCJ also had regard to mitigating factors including the Applicant's personal history, guilty plea and demonstrations of remorse. Notwithstanding these considerations, the Applicant was sentenced to what can only be regarded as a significant period of incarceration. In this regard the Tribunal notes that sentences involving terms of imprisonment are a last resort in the sentencing hierarchy and the Courts have judged the Applicant's offending to warrant a term of imprisonment on multiple occasions.[45]

1. With regard to the 'Aggravated Burglary and commit offence', her Honour Sweeney DCJ summarised the facts as follows:[46]

The grounding offence for the aggravated burglary is an offence of criminal damage. You and the victim had once been in a full on relationship, but by mutual consent it seems that it ended, had been converted into to use a colloquial expression a friends with benefits arrangement.

According to you, you generally got on well, but the problem was she often lied to you. According to her the issue is that she's frightened of you and you'd previously assaulted her.

You told the police that she'd stolen money from you. What that's translated into is that you had a cheque from the casino for that large amount of winnings, the $12,500-odd. You don't have a bank card. You needed to get the cheque cleared so she took the cheque, she banked that into her account then she was going to give you that amount of cash and you've said that's something that she's done on multiple occasions for you.

On this occasion you didn't get all of that cash from her and I understand that you allowed her to retain some $3,000-odd by way of a loan, that she was then going to pay you back within a time frame and then she didn't pay you back within the expected time frame.

You accept that your demands became more and more aggressive to the point where she changed the locks on you. It's in those circumstances you've said that you've admitted putting a wheel clamp on the car that she was driving around in order to persuade her to talk to you about the money.

You seemed when you spoke to the police to think that that was fairly reasonable behaviour. You admitted then going up to her door, trying to use keys to get in and finding that the locks had been changed and then in frustration and anger you've kicked the door multiple times until you kicked your way in and got pepper sprayed in the face for your troubles.

The CCTV footage I'm told shows you repeatedly entering and re-entering the house notwithstanding that you'd just been sprayed with pepper spray, behaving in a very volatile sort of fashion and then inside the house you've committed the offence of criminal damage as outlined by the prosecution and you were obviously in such a state of volatile behaviour that you've actually dislocated your own shoulder in lifting something heavy.

You didn't hurt her, but you certainly scared her, which of course is why she sprayed you with the pepper spray when you were trying to get in. When you spoke to the police you appeared to just completely lack an understanding that your behaviour was violent and unreasonable and wasn't going to achieve any sort of level of cooperation from a person.

Even taking you on trust that she did owe you money you had absolutely no right to behave in that fashion.

1. In assessing the seriousness of the 'Aggravated Burglary and commit' offence, her Honour held:[47]

In relation to the burglary offence, I'll take into account that you didn't actually harm Ms [Biagoni], although you did obviously scare her. I will take into account, because the State is in no position to contradict it.

And I'm prepared to take it on trust, that you and the complainant have been in contact while you've been in prison. And I infer from that, that you've reached a better understanding with each other, and been able to talk through what happened.

The offence occurred in the context of frustration on your part over money. It was obviously excessive. It was over the top and volatile, and no doubt influenced by the fact that at that time in your life you were taking drugs.

1. Her Honour took that background and the Applicant's 'degree of cooperation' with police into account when sentencing the Applicant for the aggravated burglary offence. She also took into account that the Applicant had 'made substantial admissions in relation to that matter'. In considering these factors her Honour noted that:[48]

... the incident was still frightening and volatile, and the money issue doesn't begin to justify the way you behaved on that incident.

1. Her Honour noted that the Applicant was on bail for the drug offence then when he committed the aggravated burglary offence. The Tribunal notes this offence is the only burglary related offence in the Applicant's offending history. However, the Applicant was also convicted of '_Criminal Damage or Destruction of Propert_y' and received a custodial sentence for that offence. With respect to the criminal damage offence Magistrate Watt noted:

It's a serious offence because it is a criminal damage with - that means it's intentional but it's not at the upper end of the scale of seriousness of that type of charge. I have to stop other people and think about how I can effect that through general deterrence aspects in sentencing and stop you from behaving in this way. And you actually don't have a record for anything like that.

1. In the Tribunal's view, the sentences handed down for these property offences reflected the seriousness with which they were viewed by the courts, imposing a term of imprisonment of 18 months for the aggravated burglary offence and a three-month (concurrent) term for the criminal damage offence. Given that sentences of imprisonment are a last resort, the Tribunal regards these sentences to reflect the courts' view of the seriousness of that offending, particularly with respect to the aggravated burglary offence.
2. The Applicant also has multiple convictions for the possession of unlicensed firearms, albeit these offences all arose from a single incident. The offences arose from an incident where the Applicant was arrested carrying a black bag containing a range of weapons including:
   • a loaded 12-gauge shotgun with sawn off barrel and torch taped to the top of the barrel;[49]
   • a loaded .22 calibre handgun with the sawn off barrel;[50]
   • ammunition including five 12-gauge shotgun rounds and 29 .22 calibre rounds.[51]

The arrests occurred in the context of the execution of a search warrant with respect to the Applicant's co-accused on that occasion on suspicion of drug related offences.

1. The Applicant pled guilty to this offence but maintained at the hearing that whilst he was carrying the bag, he did not know what was in it and the contents belonged to his

co-accused on that occasion. He conceded that he did not tell the police at the time that the guns in the bag belonged to his co-accused.[52] Given the Applicant pled guilty to the offence, was convicted of it and offered no corroborating evidence to suggest that the items in the bag were not his, the Tribunal does not accept this explanation. To do so would require the Tribunal to go behind the conviction and the Tribunal does not consider that the Applicant established any basis for doing so. 2. The Respondent contended that the aggravated burglary and weapons offences were 'violent offences' to which para 13.1.1(1)(a) of Direction No 79 applies. The Respondent contended that by operation of that paragraph such crimes are to be viewed 'very seriously' and that the Tribunal has no discretion to view them in a lesser or different light.[53] The Respondent also submitted that as the victim of the burglary was the Applicant's domestic partner, the crime constituted a violent crime against a woman which was similarly to be viewed very seriously regardless of the sentence imposed by operation of para 13.1.1(1)(b) of Direction 79. 3. The Tribunal has some difficulty with the submission that the burglary offence is properly construed as a violent offence for the purposes of Direction No 79. While her Honour Sweeney DCJ noted that the Applicant's behaviour was violent and unreasonable with respect to the burglary, he was not charged with any offence which would normally be regarded as a violent offence, for example assault. In such circumstances the Tribunal regards that the submission calls upon it to unnecessarily stretch the definition of a 'violent crime' provided for under Direction No 79. This also applies to the submission that the crime was a violent crime committed against a woman. Notwithstanding these concerns,

the Tribunal does regard the offences to be serious and to contribute to the overall assessment of the Applicant's offending history. It was clear from her Honour Sweeney DCJ's comments that the Applicant's conduct in the circumstances was both violent and unacceptable. The degree to which her Honour regarded the behaviour as such is reflected in the sentence which she imposed. In such circumstances the offending can in the Tribunal's assessment be characterised as very serious regardless of whether or not it comes within the ambit of a violent offence as envisaged by Direction No 79.

1. As noted above, the Applicant has nine serious driving offences in Australia including seven unlicensed driving offences, a conviction for reckless driving and failing to stop when called upon to do so. The latter convictions resulted from a high-speed chase that the Applicant was involved in on 26 March 2015, which ultimately ended in the Applicant crashing head-on into another road user, injuring the passenger in his vehicle.[54] The Tribunal notes that the Applicant was charged on this occasion in relation to the vehicle being stolen, however he was not convicted of that offence and claimed the car (which was rented) had been loaned to him by a friend. The Tribunal has not had regard to that charge given the Applicant's denial and the lack of a conviction with respect to it.
2. In the Tribunal's view, repeat driving offences including persistent driving without a licence are serious, both in terms of the risks such behaviour presents to the community and because it demonstrates a disregard for the laws of Australia. As Senior Member Tavoularis noted in Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 (Bartlett) at [43]-[45]:
   1. ... There is, to my mind, nothing to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle. ...
   2. ... This Applicant (as is the case with virtually all drivers) knew or ought reasonably to have known the potentially serious adverse consequences of unlicensed driving, or driving an unregistered/uninsured vehicle, for other road-users. Whilst no expertise in the motor insurance industry, it is common knowledge that there are insurance implications for unlicensed drivers and/or drivers of unregistered/uninsured vehicles who become involved in motor vehicle accidents. Again, for the Applicant to ignore this obvious and serious consequence of his driving conduct demonstrates an incapacity to distinguish right from wrong and to otherwise conform to the insurance/registration regime of the Australian community as it relates to the ownership and operation of a motor vehicle.
   3. The Applicant's driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users "go to the essential safety of the community". Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle - be it drinking and driving, driving without a licence, or driving an unregistered vehicle - can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.

1. In the Tribunal's view the Applicant's driving offences must be regarded as serious and are indicative of a 'failure to understand right from wrong'. These driving offences also indicate a preparedness to disregard the laws put in place to protect the community and ensure public order. Given the expectation, expressed in Direction No 79,[55] that non-citizens will be law-abiding and will respect Australia's law enforcement framework, the Applicant's conduct in this regard contributes to an assessment of the seriousness of the Applicant's conduct and offending.

Consideration and conclusion on the nature and seriousness of the Applicant's offending

1. The Tribunal notes that the Applicant has a number of other offences including damage to property. The Tribunal does not regard those offences themselves to be serious. However, as with the less serious traffic offences, this conduct contributes to an assessment of the seriousness of the Applicant's conduct and offending overall, demonstrating a preparedness to act in a manner which the legal framework in Australia determines to be unacceptable.
2. Looking at the other factors identified in para 13.1.1(1), the Tribunal finds the following:

(a) the offences were not against vulnerable members of the community, government representatives or officials;[56]

(b) there can be said to be an increasing trend in the seriousness of the Applicant's offending, in particular the Applicant's drug offending. In the Tribunal's view the frequency and trend of increasing seriousness of the Applicant's offending contributes to the assessment of his offending as serious;

(c) the Applicant has some 25 offences over a 15-year period. This is not an insignificant number of offences given the Applicant's age. The Tribunal regards that the cumulative effect of repeated offending in the Applicant's case, particularly with respect to his repeated drug and repeated traffic offences, contributes to the assessment of the seriousness of this offending;[57]

(d) there is evidence that the Applicant has provided false or misleading information to immigration officials on his incoming passenger card in 2013 and 2014 by not declaring his criminal convictions.[58] However, the Tribunal notes that the Applicant told the delegate he did not understand that he needed to declare his convictions which had only resulted in fines. The Tribunal does not accept this explanation however, the Respondent did not press this point in written submissions or at the hearing and the Tribunal does not place significant weight on the Applicant's failure to declare these offences in the assessment of the seriousness of his offending.[59] The Respondent also notes the Applicant has a conviction for providing false details to the police. The Tribunal does not consider this to be relevant to para 13.1.1(1)(g) but accepts that it does not reflect well on the Applicant and in the particularly context of his traffic offences contributes to disregard for lawful authority which is displayed by such offending;

(e) the Applicant has not received any prior warnings;[60] and

(f) there is no evidence that the Applicant has committed offences while in prison or immigration detention.[61] In this regard the Tribunal notes that the evidence suggests that the Applicant has been a compliant and productive inmate with an above-average work ethic and useful work skills in the kitchen.[62] The Tribunal accepts on the evidence that the Applicant has been on generally good behaviour in prison which is to his credit.

1. The Applicant has committed a significant number of offences albeit with most occurring over a relatively short five-year period. In the Tribunal's view, however, the fact that the Applicant offended over this period does not reduce the seriousness of the offending but rather points to the frequency with which the Applicant was offending while under the influence of drugs.
2. The sentences imposed on the Applicant by the courts also indicate the seriousness of the Applicant's offending. As noted earlier, the Applicant has been sentenced to imprisonment on multiple occasions and while the Applicant has received sentences below the statutory maximum, the Tribunal regards that this reflects the justice system's efforts to afford the Applicant opportunities to rehabilitate rather than an indication of a lack of seriousness of those offences.
3. In the Tribunal's view, the cumulative effect of the Applicant's offending must be regarded as contributing to the seriousness of the offending as it results in costs being incurred by the community, with regard to police resources, the court system and corrective services.[63]
4. Having regard to all the circumstances of the Applicant's conduct and offending, the Tribunal considers that the nature and seriousness of the Applicant's offending and conduct is very serious.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 13.1(2)(b) of Direction No 79)

1. Paragraph 13.1.2(1) of Direction No 79 provides:

(1) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

1. The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
2. The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

1. The Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to the Australian community. This requires, in part, an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[64]

It also requires an assessment of the likelihood of re-offending.[65] 2. The Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359 at 389 [111] (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at 444-445 [94]-[95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117 at 124-125 [42]-[43]):

An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality, but also on the seriousness of the consequences if it does.

(Footnotes omitted.)

1. There is no statutory constraint on the way risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[66]
2. The Applicant submitted that '[t]he nature of the harm that could occur if the applicant were to reoffend is causally linked to his capacity to be rehabilitated from drugs'.[67] The Applicant submitted that the steps he has made in rehabilitation, in strengthening his relationship with his family and in building his professional capacity in prison all demonstrate that he presents a low risk of reoffending.[68] He also submitted that his low risk of reoffending is demonstrated by:[69]
   • the fact that the offending occurred within a three-year period while he was addicted to methylamphetamine and he is now clean and sober and has participated in several rehabilitation and life improvement programs, including Narcotics Anonymous;
   • pleading guilty to his offences at the first opportunity on all occasions;
   • the fact that he is now living as a Christian, is actively involved in the church again and has a close connection with a Maori cultural group which provides strong male support;
   • his deep remorse for his actions and his acknowledgement of the damage that drug trafficking does to society such as the cost to the public health and justice system;
   • the impact of his time away from his family, in particular his daughters and granddaughter, has had on his appreciation for the damage caused by his offending;
   • his good behaviour in prison;
   • the fact that his driving record does not indicate that he drove with alcohol or drugs in his system;
   • his plan for rehabilitation and a prosocial future, including the prosocial support of his family, friends and extended community group; and
   • the fact that when he previously had the support of his pro social network, he remained drug free for over 10 years.
3. On this basis, the Applicant submitted that the consideration of the protection of the Australian community, with regard to the risk of harm to the Australian community, weighs in favour of revocation of the Cancellation Decision.
4. The Respondent submitted that the nature of the harm that could occur if the Applicant were to reoffend is serious. The Respondent pointed to the fact that drug dealing, particularly in methylamphetamine, inflicts a broad range of harm upon the Australian community including physical harm, mental illness, violence, chronic health issues, loss of productivity and engagement with the criminal justice system, all of which are serious and have significant costs to the broader community. The Respondent cited the Final Report of the National Ice Taskforce in support of this contention.[70] The Respondent submitted that the potential harm to be caused by the Applicant's past offending was so serious that any risk that it might be repeated is unacceptable.[71]
5. The Respondent further submitted that there is no evidence regarding the effectiveness of the courses that the Applicant has undertaken and there is insufficient independent evidence to conclude that the Applicant is rehabilitated. In this regard the Respondent submitted that:[72]
   • the Applicant's own drug addiction was a significant contributor to his drug dealing offending and there is no evidence that he has intended targeted rehabilitative courses other than a six-hour course in 2020. Further his resolve to remain clean and sober has not been tested while he has been in the community. In addition, there is no expert evidence before the Tribunal providing any diagnosis of psychological or other factors predisposing the Applicant to drug abuse and the Applicant does not appear to have a clear plan in place with respect ongoing therapy;
   • the Applicant has been involved with drugs since the age of 19 and his long involvement with drugs and his previous incarceration did little to curb his offending behaviour; and
   • the support of the Applicant's family and other elements of his support network did not prevent him from reoffending in the past and there is no compelling evidence to suggest that the support will be more effective in the future.
6. Accordingly, the Respondent submitted that the Applicant presents an unacceptable risk to the Australian community and that the consideration of the protection of the Australian community, with regard to the risk of harm to the Australian community, weighs heavily against revocation of the Cancellation Decision.[73]
7. The Applicant suggested that the nature of the harm that would be caused if he were to reoffend in a similar manner was causally linked to his capacity to be rehabilitated from drugs. With respect, the Tribunal considers that this conflates the two elements of assessment the Tribunal is required to undertake. The assessment of risk requires 'consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be'.[74] Further, Direction No 79 para 13.1.2(1)(a) requires the Tribunal to have regard to 'the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct' in considering the risk to the community.
8. It follows that in order for the Tribunal to make an assessment of whether this consideration weighs for or against revocation of the Cancellation Decision, an assessment of the nature of the harm that would be caused if the Applicant were to reoffend is necessary, notwithstanding the Applicant's claims that he does not present a risk of reoffending having regard to his rehabilitation and remorse.
9. The Applicant has engaged in a broad range of offending including serious drug offending, traffic offences, firearms offences and property offences. With respect to the Applicant's drug offending, the Respondent drew the Tribunal's attention to the Final Report of the National Ice Task Force which describes the 'distinct problem for society' created by methylamphetamine in the following terms:[75]

Unlike cannabis or heroin, ice is an extremely powerful stimulant. For some people, it can trigger psychological disturbances or violent and aggressive behaviour. Long term use may damage the brain and cause impaired attention, memory and motor skills. The distress ice causes for individuals, families, communities and frontline workers is disproportionate to that caused by other drugs.

1. The Report also points to the fact that methylamphetamine is easily concealed and trafficked, is particularly dangerous for young new users, is more likely to cause dependence than other drugs and has a very long withdrawal and recovery phase. The Report notes the that prolonged heavy use can impair cognitive function for months after giving up the drug and that relapse is 'understandably common'. The Report also points to the fact that these features of methylamphetamine use provide 'a perfect opportunity for organised crime'.[76]
2. With respect to the Applicant's trafficking offence her Honour Lonsdale DCJ noted that '[b]y doing what you did, you played an important and integral role in the distribution of drugs by effectively brokering a deal between two people known to you'.[77] The sentencing remarks of Sweeney DCJ made in relation to one of the Applicant's 'Possession of a Prohibited Drug with Intent to Sell or Supply' offences make several references to the need for his sentence to send a message to the community that possession of methylamphetamine with intent to sell or supply to others will be met with serious punishment 'because of all the harm that drug does to the community'.[78]
3. The Tribunal notes that drug offences often do not involve an identified victim who is harmed as a result of the offence. As noted recently by McKerracher J in RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266 at [48]:

It may also be accepted that there is a degree of separation in the committing of certain offences between the criminal act and any potential harm. Such offences encapsulate conduct that does not necessarily require an element of harm to another person to attract criminal sanction and can be distinguished from other crimes such as those involving direct violence where the harm arises immediately upon the doing of the act. ... However the critical feature of these acts is that they attract criminal sanction because committing them creates a greater risk that much more serious conduct that does cause direct and significant harm could result.

Although His Honour was commenting in that case about child pornography and traffic offending, in the Tribunal's view his comments are equally applicable to serious drug offences.

1. If the Applicant were to reoffend in a similar manner to previous drug offending, the Tribunal finds that the likely harm to the community would be serious and would include facilitating drug use and addiction in others, contributing to drug-related crime and the corresponding costs to the community of drug addiction and drug-related crime. As the Report demonstrates, the potential for harm arising from drug use, supply and in particular trafficking, presents the community with serious challenges and carries with it the potential to cause significant and wide-ranging harm to the community.
2. The Applicant's aggravated burglary offence was described by the sentencing judge, Sweeney DCJ, as 'violent and unreasonable'. The Applicant caused damage to property, fear to the victim and necessitated the use of police resources to attend and deal with the Applicant's actions. The Tribunal finds that if the Applicant were to reoffend in a similar manner the likely harm would include damage to property, psychological harm to victims and the cost to the community for the use of police, court and custodial resources.
3. The Applicant was also convicted of being in possession of unlicensed firearms. The strict firearm regulations that apply in Australia reflect the serious risk that unlicensed and unregulated weapons present to the community, particularly with regard to the use of weapons in the commissions of crimes. If the Applicant were to reoffend in a similar manner in the future, the Tribunal finds that the harm to the community which is likely to occur includes the presence of unlicensed firearms in the community and the associated risk of violent gun-related crime, such as the risk of serious injury and death to members of the community.
4. Further, as noted above in the assessment of the nature and seriousness of the Applicant's offending, the Applicant has committed a series of driving offences and has persistently driven without being licenced to do so. On one of these occasions he was in a highspeed chase with police, which resulted in him hitting another road user and injuring the passenger of his car. The Tribunal takes driving offences seriously, and notes the serious harm, such as injury or death, that road users can suffer as a result of such offences.[79] Were the Applicant to reoffend in a similar manner in the future, a likely outcome would be that members of the public would suffer serious injury or even death in the event of a highspeed pursuit or accident, putting both police and members of the community at risk of serious harm.
5. Based on the Applicant's history of offending, the Tribunal finds that if the Applicant

reoffends in a manner consistent with his past offending, the nature of harm that would result includes the sale and consumption of methylamphetamine in the community, drug-related crime, police and law enforcement costs, risk of physical harm from road accidents is serious. 6. The Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[80] 7. With respect to the likelihood that the Applicant will engage in further criminal or other serious conduct, the Tribunal notes that there is no psychological or other medical evidence before the Tribunal that provides an assessment of the Applicant's risk of reoffending. 8. In sentencing remarks with respect to the Applicant's drug trafficking offence, her Honour Lonsdale DCJ noted that the Applicant was remorseful, as reflected in his attempts of rehabilitation. Her Honour also referred to a presentence report that is not before the Tribunal, which suggested that the Applicant had 'some insight into the effect of drug addiction on the community'.[81] 9. Her Honour Sweeny DCJ, in the sentencing the Applicant with respect to the aggravated burglary and possession with intent to sell or supply offences in 2019, noted that the Applicant showed 'a lack of insight into how to deal with conflict' in the context of the aggravated burglary offence.[82] However, her Honour also noted that the Applicant had taken steps whilst in prison to attempt to address his issues 'being not only your relapse into drug use, but also your volatile response to conflict'. Her Honour observed as follows:[83]

Although I'm mindful, of course, that these things are being said in your letter on the eve of sentencing, it's not quite the same thing as making meaningful changes once you're out in the community. I do recognise that you've been undergoing courses while in prison, and recognising that there is an issue in the beginning of making solid changes once you get out. It increases the prospects of rehabilitation.

1. With respect to the length of the sentence to be imposed for the aggravated burglary and possession with intent to sell or supply offences, her Honour Sweeney DCJ noted that the court took a lenient view of the length of sentence to be served:[84]

... because if everything that is being said on your behalf is genuine and is made good by you when you are eventually released, I think it would be counter-productive for the court at this stage to impose too lengthy a sentence, when you are making, it seems to me, quite genuine attempts to turn your life around.

1. Subsequent to this sentencing, the Applicant was sentenced to a further four years imprisonment for a trafficking offence. In sentencing the Applicant with respect to that offence, her Honour Lonsdale DCJ noted:

[Y]ou have ongoing treatment needs for substance abuse. I note your attempts at rehabilitation since you been in custody, having attended a number of sessions with Narcotics Anonymous. You've indicated you're willing to engage in programs within the prison setting. You are considered to be someone who would benefit from psychological counselling.

1. There is limited expert evidence before the Tribunal as to the reasons for the Applicant's offending and the risk factors associated with the Applicant reoffending. However, it is clear from the Applicant's offending history and the comments of both sentencing judges noted above that drug use and addiction has been an underlying cause of the offending.
2. Evidence before the Tribunal establishes that the Applicant has attended a range of courses for rehabilitation and improvement while in prison, including:
   • alcohol and other drugs, brief intervention group therapy - a six-week program including strategies to assist in the prevention of recidivist behaviour;
   • Lifeskills course, completed 10 June 2019;
   • attendance at 12 recovery from addiction meetings while at Acacia prison;
   • Outcare career development workshop, completed 11 April 2019;
   • the Green Lighthouse program - a six-week course with one session per week and voluntary drug and alcohol mentoring program. completed in January 2020;
   • the 'Alpha' course undertaken from July to September 2020;
   • ten-week basic Maori language course, completed 30 September 2020;
   • a 'Discovering God' course undertaken from September to December 2019;
   • A 'One star' food safety and hygiene training course, completed in May 2020; and
   • the receipt of an award for a commitment as a courier facilitator, ensuring Maori language is kept strong and vibrant, awarded in 2021.
3. The Applicant also submitted that he is attending weekly Narcotics Anonymous meetings.[85] There were no details confirming his attendance at those meetings in the material but attendance at Narcotics Anonymous was referred to in the sentencing remarks and the Tribunal accepts the Applicant has been attending Narcotics Anonymous meetings during his current prison term.[86]
4. These programs were attended voluntarily as the Applicant was not recommended for criminogenic programs in prison due to being 'a low risk of reoffending'. That assessment was based on the Risk of Reoffending - prison version assessment (RoR-PV) administered by a treatment assessor at Hakea prison. While the Tribunal places some weight on that assessment of the risk of reoffending, there is no material before the Tribunal relating to the nature of that assessment. In particular, there is no information about whether the assessment includes an assessment of the likelihood that the applicant might relapse into further drug use.
5. The Tribunal notes that the Applicant was eligible for parole in February 2020 however he was denied parole at his own request as he was awaiting sentencing for the trafficking charge.[87] Accordingly, the Tribunal places no weight the denial of parole on that occasion.
6. The Applicant has submitted that he will not reoffend and described his rehabilitation plan in the community during testimony as follows:[88]

So pretty much my relapse prevention plan would follow like this, I've been saving money from my prison employment in order to finance the cost of Whitehaven (indistinct) which I intend to complete before I would be released from prison. It's a privately run intensive drug treatment program, the cost is quite expensive, it's about $300 a session and after 12 sessions it gives you a recommendation on how you've participated in the drug treatment program. So initially, my - I want to continue to save so I can finance that and enable myself to have a successful and healthy recovery before I am released from prison. Upon my release from prison, I would like to participate in a further 12 sessions with the same program.

1. The Applicant's cousin Ms Jade Bennett mentioned in her statement to the Tribunal that she wanted the Applicant to attend the Rick Hamersley Therapeutic Community (Cyrenian House), which the Applicant submitted was the Whitehaven counselling program for the treatment of addiction.[89] Ms Bennett is herself a recovering addict who has undertaken an 18-month rehabilitation program. It was not clear on the information before the Tribunal that the programs offered by Cyrenian House included or were connected to those offered by Whitehaven. It was also not evident on the material before the Tribunal that the Applicant had made any concrete plans to access these services, although the evidence of the Applicant and Ms Bennett indicates that he has at least had discussions regarding what may be available to him upon release.
2. In this regard the Tribunal notes that the Applicant testified that he plans to live with his father, Mr Kake, in Kambalda following his release from prison. It did not appear from his testimony that Mr Kake was familiar with any plan for the Applicant to undergo any particular treatment program.[90] Mr Kake indicated that he had not had any formal rehabilitation with respect to his own prior addiction to drugs but had done it on his own. He indicated that he would support the Applicant to get counselling and rehabilitation 'if needs to be there'.
3. The Applicant provided various supportive third-party statements from family members.

A number of these statements spoke to the Applicant's regret of his previous conduct and his commitment to rehabilitation.[91] The Tribunal places weight on these statements as evidence of family and community support for the Applicant in Australia. The Applicant's family members attest to their willingness to support the Applicant by communicating with him regularly, taking him to drug and alcohol counselling and generally supporting his rehabilitation.[92] Such support would provide a protective factor for the Applicant against reoffending. However, the Respondent submitted that the Applicant had the support of this network in the past and it did not prevent him offending. This included following a prior period of incarceration during which the Applicant stated he was 'clean and sober'. 4. While the Tribunal accepts that the Applicant has engaged in voluntary programs designed to address addiction and recidivism, there is no evidence before the Tribunal that the Applicant has undertaken any counselling treatment or clinical treatment for addiction or its underlying causes. Further, there is no other evidence of treatment having been arranged or planned for the Applicant upon his release into the community. The Tribunal accepts that this may, in part, be due to the amount of time the Applicant has left to serve before he is due for release from prison. Although this is perhaps understandable, it does create a concern for the Tribunal that there is a risk that the Applicant may not have adequate rehabilitative support following his release from prison. 5. In this regard the Tribunal again notes the Respondent's concern that the prosocial network and family support that the Applicant indicates he relies on as a protective factor against reoffending was largely present and available to the Applicant during the period in which he was offending. The Tribunal shares this concern. The Applicant's family has not previously provided a network of support which has preventing his offending, including during his initial exposure to drugs. Indeed, the Applicant's evidence was that his family environment was an underlying factor in his drug addiction. In such circumstances, reliance on the same family network as a protection against relapse may be regarded as carrying some risk. The Tribunal also notes that the Applicant was unable to remain clean and sober following a previous period of incarceration and sobriety, being between October 2015 to February 2017.[93] The Applicant indicated that he did not have access to treatment services in prison during that previous sentence, however he also failed to access any rehabilitation services following his release from prison and relapsed within about 10 months. This suggests both a lack of insight into the nature of his addiction and a lack of commitment to longer term rehabilitation. 6. The Applicant also pointed to his reconnection with his faith as a prosocial protective factor against reoffending. As the Applicant claims to have been a committed and involved Christian in the past, a similar concern arises with respect to whether his faith and church involvement may provide a sufficient support against drug use and reoffending in the future. 7. The Applicant submitted that he has cut ties with the social network with whom he was engaged at the time of his offending. This includes Ms Biagioni. However, while the Applicant in the hearing claimed to have ceased contact with Ms Biagioni around 12 months ago, this had not been communicated to the delegate prior to the Reviewable Decision being made, despite further information being provided to the Department as late as December 2020. The strong statements regarding the status of the relationship in the revocation request to the Department in October 2019[94] leave some doubt as to the status of that relationship and likelihood of future contact. However, as there was no evidence of the Applicant's recent contact with Ms Biagioni the Tribunal accepts that the Applicant is not currently in contact with her. 8. There is no expert evidence before the Tribunal regarding the degree to which the Applicant has rehabilitated or is capable of rehabilitation and no expert assessment of his risk of recidivism, such as psychological or psychiatric evidence or assessments. Further, there is no psychiatric evidence before the Tribunal on which to base an assessment of the Applicant's current attitude towards his offending. This makes assessment of the risk of reoffending more difficult. 9. In the Tribunal's view, having regard to those circumstances and absent any evidence of rehabilitation or treatment which has been clinically managed or tested in the community, there remains a risk that the Applicant may relapse into drug use and associated offending as he did following his release from prison after his previous period of imprisonment. Indeed, it was following that relapse that the Applicant's most serious offending occurred. 10. The Tribunal accepts that the Applicant has expressed remorse for his past offending. The Tribunal considers the Applicant's remorse to be genuine, particularly with respect to the impact it has had on his family and specifically in relation to Ms A. 11. The Applicant has taken steps to undertake training in prison and to address his issues with addiction. He has also re-engaged with his faith and his Maori culture. These activities are commendable. However, the Applicant has not undertaken any specific counselling or addiction treatment programs to address drug use, the risks of reoffending and the underlying causes of his drug dependency and in the Tribunal's view he does not, on the evidence, have a clear plan to undertake such treatment in the community. 12. Based on the evidence before it, and having regard to the fact that the Applicant has previously relapsed into drug use and associated offending, including on release from prison, the Tribunal finds that that there is moderate risk that the Applicant will reoffend in a similar manner, depending on whether the Applicant maintains his current abstinence from drugs once released from prison. However, this must be balanced against the nature of the harm that could result if the Applicant were to commit further serious drug offences, including trafficking or driving offences, which could be very serious. The Tribunal finds that given the nature of the harm that would be caused if the applicant were to reoffend and the likelihood of his reoffending, the risk to the Australian community is unacceptable.

Conclusion on the protection of the Australian community

1. Having regard to the nature and seriousness of the Applicant's offending and conduct and the risk of the Applicant reoffending again in the future, the Tribunal finds that this primary consideration weighs strongly against revocation of the Cancellation Decision.

The best interests of minor children in Australia (para 13.2 of Direction No 79)

(1) Decision-makers must make a determination about whether revocation is in the best interests of the child.

(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.

(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

(4) In considering the best interests of the child, the following factors must be considered where relevant:

1. 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);
2. 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;

1. 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;

1. 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; 2. Whether there are other persons who already fulfil a parental role in relation to the child; 3. Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child); 4. Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and 5. Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

1. The Applicant has two daughters from his relationship with Ms Curtis - a step-daughter, Ms Shanaye Curtis, who is now an adult and a biological daughter, Ms A, who is 12 years old.[95] He also has a granddaughter, Ms AD, who is Ms Shanaye Curtis' child and who is around 9 months old.[96]
2. Ms Shanaye Curtis' interests will be considered below in the context of the Applicant's ties to Australia.
3. The Applicant's written submissions refer to 17 children (including Ms A and Ms AD) who would be 'significantly affected by the removal of the Applicant from Australia'.[97] The children identified include the Applicant's nieces and nephews in Australia. Fifteen of the children are not identified in the written submissions to the Tribunal, however they were identified in the request for revocation and in a number of statutory declarations submitted to the Tribunal.
4. In addition to Ms A and Ms AD, the children listed in the request for revocation or statements and statutory declarations were:

1. The Applicant's sister's statutory declaration also mentions another niece, Ms Chloe Headland, daughter of Ms Stanley Headland. However, as Ms Headland turned 18 earlier this year and is no longer a minor she will be considered below in the context of the Applicant's ties to Australia.
2. The Applicant submitted that the best interests of the minor children identified favoured revocation of the Cancellation Decision and that this consideration weighs strongly in the Applicant's favour. The Applicant submitted further that:[113]
   • his removal to New Zealand would affect the children in both a personal and cultural manner;
   • the evidence established that the Applicant had been involved in the lives of his nieces and nephews including babysitting them, taking them on outings and maintaining contact with them. The Applicant is a positive influence in the lives of the children, is a positive role model and 'his charismatic personality and humour is positively enjoyed by them'. The views of the children which were before the Tribunal demonstrate 'the love and deep commitment that the children within [the] family have for the Applicant' and the evidence of their parents attests to the positive role he plays in their lives;
   • with respect to his daughter and granddaughter there is still a considerable period of time until both turn 18 years of age; and
   • the removal of the Applicant would have a cultural impact on the Indigenous Australian and Maori children of the family, given the experience of the Stolen Generation and the negative impact that the removal of key familial figures has upon children of Indigenous culture. The Applicant occupies a responsible position within a cultural context which cannot be underestimated.
3. The Applicant tendered a copy of the report 'Aboriginal and Torres Strait Islander Stolen Generations and descendants: Numbers, demographic characteristics and selected outcomes'[114] in support of the submission regarding the cultural impact of the Applicant's removal on some of the children identified who are Indigenous Australians.
4. The Respondent submitted that even if the best interests of the Applicant's daughter,

Ms A, were considered to weigh in favour of revocation of the Cancellation Decision, this does not outweigh the other primary considerations weighing heavily in favour of non-revocation of the Cancellation Decision, having regard to:[115] * the fact the child's mother fulfils a parental role with respect to her; * the lack of independent evidence of the effect of ongoing separation on the child; * the ability of the Applicant and the child to maintain contact by other means, including telephone, video communication or visiting the Applicant in his home country; and * the fact that the Tribunal should have limited confidence that the Applicant would play a positive role in the child's life given past criminal behaviour and drug addiction. 5. With respect to the other children, the Respondent submitted there was insufficient evidence before the Tribunal regarding the effect that non-revocation of the Cancellation Decision would have on them and that the impact of non-revocation is neutral with respect to these children. The Respondent submitted that '[s]ometimes the best decision "about" whether a cancellation is, or is not, in the best interests of the child may be that it is neither'.[116] 6. There was limited evidence before the Tribunal with respect to some of the Applicant's nieces and nephews. The Tribunal has made findings regarding the interests of these children on the evidence given by the Applicant and his family members at the hearing, and the available documentary evidence before it pertaining to the children. 7. The Tribunal has considered the interests of some of the children individually to the extent that their interests may differ. In light of the limited nature of the evidence with respect to some of the children and the fact that the Applicant's submissions and evidence grouped their interests in certain respects, the Tribunal has grouped the children according to those submissions and indicates that their interests do not differ in any substantive sense.

1. Ms A and her mother, Ms Charlene Curtis, are Australian citizens.
2. While they would be able to travel to New Zealand as they have done in the past, enabling them to visit the Applicant, the Tribunal accepts that they are unlikely to relocate to New Zealand permanently.
3. The Applicant is in a parental relationship with Ms A.[117] At the time she was born, her parents were living together. The Applicant and Ms Curtis indicated that they had been together as a couple until they separated in 2015, when Ms A would have been around six or seven years old. However, material before the Tribunal indicated there had been periods during that time when the Applicant and Ms Curtis had been living separately. At the hearing, the Applicant told the Tribunal that they separated when Ms A was around five years old and that she has lived her mother since that time.[118] He said that during the relationship he had lived with a church family for a short time while they resolved their 'relationship issues'.[119] One of those times was in 2011. Ms Curtis told the Tribunal that they were 'always on and off' and that they ceased communication in 2015.[120] She further told the Tribunal that the 'on and off' nature of the relationship included the Applicant renting himself a unit in a Perth suburb and then moving to another address. She said this was prior to the couple permanently breaking up, sometime prior to the Applicant's arrest in March 2015.[121]
4. The Tribunal notes that the Applicant has been in prison on a number of occasions, including for a period from October 2015 until February 2017 and again from

18 November 2018 until the present. He is not eligible for parole until 2023 and his full-term sentence is due to conclude in 2025.[122] It follows that he has had and will continue to have significant periods of separation from his daughter (and the other minor children considered) due to his offending and resulting incarceration. 5. Despite what appears to have been significant periods when the Applicant has necessarily been physically separated from his daughter, the evidence establishes that he has a close relationship with her and has been involved in her care while in the community and has been emotionally supporting her while in prison. He has also provided some limited financial support.[123] The Tribunal accepts on the evidence that the Applicant maintains regular contact with his daughter and discusses significant parenting decisions with her mother. 6. Ms A's mother is currently fulfilling the parental role in relation to her and has done so since before the couple permanently separated. There is no information before the Tribunal as to any court orders in place with respect to the care and custody of Ms A. However, the Tribunal accepts that the Applicant and Ms Curtis share parenting responsibilities for her including childcare and parenting decisions.[124] 7. While there was evidence that Ms Curtis has contacted police in 2015 regarding concerns for her safety and that of the children, no charges were laid with respect to that incident and Ms Curtis testified that the Applicant had not engaged in physical violence with her or the children. There is no evidence that any prior conduct of the Applicant has had a negative impact on Ms A.[125] 8. Having regard to Ms A's age, if the Applicant is in the community and refrains from reoffending there would be an opportunity for him to play a positive role in her life for a number of her teenage years, albeit that he still has time to serve on his sentence and

Ms A will be 14 years of age before he is eligible for parole in May 2023 and 16 if he serves his full sentence.[126] 9. According to Ms Curtis, the Applicant speaks to Ms A daily by telephone, on occasion several times a day,[127] and she visits him in prison facilitated by her mother or other family members including her older sister. Ms A visited the Applicant in prison with her sister, niece and mother several weeks prior to the hearing. If the Applicant is removed from Australia, Ms A will be deprived of having a close, in-person relationship with him in the future. It would, however, be possible for her to continue to communicate with the Applicant in other ways, for example by telephone or over the Internet via Skype or FaceTime.[128] This is consistent with the manner in which Ms A has maintained contact with her father while has been in prison. However, the Tribunal accepts this would not provide Ms A with the same relationship with her father as would be possible if she were to visit him in-person occasionally for the remainder of his prison sentence and on a regular basis upon his release into the community. 10. The Tribunal finds that if the Applicant were to return to New Zealand, he would likely be able to maintain some in-person contact with his daughter, who would likely visit him there on occasion. The Tribunal accepts that this is not a substitute for the regular contact Ms A may be able to have with the Applicant were he to remain in Australia. There would be nothing preventing Ms Curtis and Ms A from relocating to New Zealand on a more permanent basis should they choose to do so. However, the Tribunal acknowledges it is unlikely that they would do so, for a range of reasons including their family connections in Australia and has therefore assessed Ms A's interest on the basis that she would remain resident in Australia with her mother. 11. There is no evidence that the Applicant has abused or neglected Ms A in any way in the past,[129] nor is there any evidence Ms A has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct.[130] 12. There was strong evidence before the Tribunal to suggest that the Applicant is committed to a positive relationship with his daughter, including notes from Ms A to her father.[131] Ms Curtis and Ms A's sister, Ms Shanaye Curtis, gave evidence that Ms A's separation from her father has caused her anxiety for which she has received medical treatment.[132] The Applicant acknowledged that his separation from Ms A may have contributed to her anxiety.[133] Ms Curtis stated that the Applicant plays an important role in calming Ms A when she suffers from anxiety.[134] Both Ms Charlene Curtis and Ms Shanaye Curtis testified that the Applicant's removal to New Zealand would risk significantly worsening Ms A's separation anxiety.[135] 13. The Tribunal accepts that the Applicant is committed to his relationship with his daughter and that he has a strong relationship with her. Ms Curtis supports this relationship and relies on the Applicant's support in raising their daughter. She maintains they will suffer emotionally and financially if the Applicant is removed to New Zealand. The Tribunal has formed the view that maintaining a strong relationship with his children is a driver for the Applicant's commitment to reform his behaviour. If he were to maintain that commitment and not reoffend he could play a positive role in his daughter's life.[136] 14. On the basis of the material before it, the Tribunal finds that the best interests of Ms A would be served by the Cancellation Decision being revoked.

1. As noted above, several additional minor children whose best interests may be relevant to this application were identified on the material. This included the Applicant's granddaughter who is nine months old.[137]
2. The Applicant, Ms Charlene Curtis and Ms Shanaye Curtis all gave evidence regarding Ms AD's interests.[138] Ms AD's mother indicated that she wants the Applicant to be part of his granddaughter's life as he would care for Ms A as he did for her. She notes that:[139]

I want [the Applicant] to be a part of my child's life, he is charismatic and funny, children are drawn to him and he has a talent to make children feel special and the centre of the event. He makes funny jokes and can act silly just to make them laugh'.

1. The evidence indicated that the Applicant has met Ms AD in person once, when she visited the prison with her mother several weeks before the hearing.
2. On the available evidence the Tribunal finds that the child's mother fulfils the parental role in relation to Ms AD.[140] The relationship between Ms AD and the Applicant is

non-parental as the Applicant is a grandparent to the child and has no historical or ongoing responsibility for her care or upbringing. However, Ms AD is very young and if the Applicant is in the community and refrains from reoffending there would be an opportunity for him to play a positive role in Ms AD's life as a grandparent.[141] 3. There is no evidence that any prior conduct of the Applicant has had a negative impact on Ms AD.[142] Ms AD has recently had her first in-person visit with the Applicant and if the Applicant is removed from Australia, Ms AD will be deprived of having an in-person relationship with him in the future. It would, however, be possible for Ms AD to communicate with the Applicant in ways other than in person, for example by telephone or over the Internet via Skype or Facetime once she is older.[143] 4. As Ms AD is very young, her mother and grandmother spoke to her interests.[144] There is no evidence the Applicant has abused or neglected Ms AD in any way in the past,[145] nor is there any evidence that she has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct.[146] 5. On the basis of the material before it, the Tribunal finds that revocation of the Cancellation Decision is in the best interests of Ms AD. Ms AD's interests are considered further below in the discussion of the minor children identified to be Indigenous Australians.

1. As noted above, the Applicant submitted that the best interests of his nieces and nephews constituted 'another reason' for the Cancellation Decision to be revoked.
2. As noted above, in light of the limited evidence before the Tribunal with respect to some of the children and in light of the fact that the Applicant's submissions and evidence grouped their interests in certain respects, the Tribunal has grouped the children according to those submissions and indicates that their interests do not differ in any substantive sense.[147]
3. Several of the children's parents made statements regarding the children's relationships with the Applicant.[148] Mr Kake, who is the grandfather of a number of the children, also testified as to the Applicant's commitment to them.[149] There are no known views of most of the children before the Tribunal. However, Ms T and Ms H provided letters to the Tribunal describing their relationship with the Applicant and his importance to them.[150] Ms T wrote of the fact that the Applicant was family oriented and would baby sit them when they were younger and buy them Christmas presents. She stated that if the Applicant were to leave Australia it would be:[151]

A great loss to our family overall. My mother is the only person in her family who has the finances of travelling back to New Zealand in the future if he is deported. And the truth is the family I know and love will be shattered and at a loss for the rest of there lives.

(Without alteration.)

1. Ms H stated that she values the Applicant because:[152]

He is a good uncle who loves all of his nieces and nephews. His love for family is something my mums and her siblings have brought us kids up to value family and the time we have with them.

1. Mr Headland spoke of the fact that the family was close and met on special occasions, holidays and birthdays.[153] He testified that the Applicant's role in the family is important because he was the only son and his sisters relied on him filling that role within the family.
2. There was evidence that a number of the children had visited the Applicant in prison with their parents and their parents indicated that he is in contact with the children by telephone. In the Tribunal's view the evidence is consistent with the Applicant having a relationship with his nieces and nephews as members of his extended family with whom he has regular contact for family events. When he was younger and was living with his oldest sister, he was sharing a home with several of her children. This was for a period of several years prior to 2005. The Applicant indicated an intention to move to Kambalda to live with his father following his release from prison. Mr Headland indicated that his family, including his children would be relocating to live in Kambalda shortly as he had just secured a rental property there. If the Applicant moves to Kambalda the Tribunal accepts that he would likely have regular contact with Mr Headland's children.
3. The relationship the Applicant has with his nieces and nephews is non-parental. He is their uncle and has no historical or ongoing responsibility for their care or upbringing.[154] The children's ages range from 17 years to newborn. If the Applicant is released back into the community and if the Applicant refrains from reoffending, there would be an opportunity for him to play a positive role in most of the children's lives, with the exception of Mstr L who would become an adult before the Applicant is eligible for parole.[155]
4. There is no evidence that any prior conduct of the Applicant has had a negative impact on the children.[156] It would be possible for the children to communicate with the Applicant in ways other than in-person, for example by telephone or over the Internet via Skype or Facetime[157] as they have done in the past, however the Tribunal acknowledges this is not a substitute for in-person contact.
5. The children's parents fulfil parental roles in relation to the children, with the exception of Ms SO and Mstr K, who are in the permanent custody of their aunt, Ms Naussedat. There is no evidence that the Applicant has abused or neglected any of the children in the past nor is there any evidence they have suffered or experienced any physical or emotional trauma arising from the Applicant's conduct.[158]
6. The Tribunal notes that the Applicant and his family members testified that he plays an important role for the children as the only uncle on the maternal side and that he has now embraced Maori culture and language and hopes to share that with them. However, the Tribunal also notes that the Applicant's engagement with Maori culture appears to have occurred during his most recent incarceration and that it does not appear that he has played this role for the children in the past. Further, their grandfather and mothers are also members of the Maori community and could also assist the children in understanding this element of their cultural background.

Indigenous Australian nieces, nephews and granddaughter

1. It was submitted by the Applicant and attested by several witnesses, in particular Mr Headland, that the interests of the Applicant's Indigenous nieces and nephews would be adversely effected by his removal due to the inter-generational impact of the trauma of the 'stolen children' on Indigenous families. Mr Headland testified that he is a Noongar man and that his children are members of the Noongar Nation. The Tribunal accepts his evidence and finds that Mstr C, Ms KM, Mstr S, Ms R, Mstr N, Ms L, Ms D and Ms AT are Indigenous Australians. Though she was not specifically mentioned in this regard, the Tribunal notes that the Applicant's step-daughter also identifies as a member of the Noongar nation through her father, though she noted she has had no relationship with him and has not had contact with that side of her family.[159] On that basis, the Tribunal accepts that Ms Shanaye Curtis is an Indigenous Australian and the Tribunal further accepts that Ms AD would also identify as Indigenous Australia.
2. As noted earlier, the Applicant tendered a copy of a report that discussed aspects of the Stolen Generation in support of this contention.[160] However, as discussed with the Applicant's representative at the hearing, it was not clear on the evidence how this material related to the children identified. There was no evidence from Mr Headland in his oral testimony that the family was directly impacted by the issues raised in the report or more broadly with respect to stolen children. Further, the circumstances surrounding the current application are, on the material before the Tribunal, quite different to those relating to the historical removal of Indigenous children and young people to live outside their Indigenous communities.
3. The Applicant is not an Indigenous Australian. He identifies ethnically and culturally as a member of the Maori community, being a group of peoples indigenous to New Zealand. While the Tribunal accepts that the family places great importance on the closeness of the extended family, Mr Headland's testimony indicated that this reflected cultural values of supporting and valuing family and learning from elders. However, his testimony did not suggest any particular harm associated with historical policies of removing Indigenous Australians from their families. Mr Headland indicated that as a Noongar man he did not agree with the cancellation of visas and removal from Australia that certain non-citizens like the Applicant may be subject to.[161] However, he expressed this as a broader policy objection.
4. In any event, the Tribunal does not accept in the Applicant's circumstances that the children's best interests are differently impacted by non-revocation of the Cancellation Decision because they are Indigenous Australians. In this regard, the Tribunal considers their circumstances can be distinguished from those of Indigenous children who face the prospect of one parent being removed from Australia, as in such cases the capacity of those children to enjoy the care and protection of their non-citizen parent may be constrained by their need to remain living in Australia in order to maintain a connection to country and culture.[162] That is not the situation of the Applicant's nieces and nephews, whose connection to country and culture is not impacted by their non-Indigenous uncle's removal and who would not be constrained, at least on a cultural basis, from visiting him outside Australia if their financial circumstances allowed. The circumstances and considerations which apply are also quite different from those where the Applicant is themselves an Indigenous Australian.[163]
5. For the same reasons, the Tribunal does not consider that Ms AD's interests are differently impacted due to her being an Indigenous Australian child. In this regard the Tribunal notes that the Applicant is not in a parental relationship to Ms AD and there is no evidence that she would live with the Applicant in Australia or relocate to do so in New Zealand.
6. Having considered the material before it, the Tribunal concludes, on balance, that revocation of the Cancellation Decision is in the best interests of the Applicant's nieces and nephews, though given the more distant relationship the Applicant has with these children the Tribunal considers their interests weight less heavily than those of Ms AD and in particular those of Ms A.

Conclusion on the best interests of minor children in Australia

1. Considering the interests of the identified minor children the Tribunal finds that this consideration weighs heavily in favour of revocation of the Cancellation Decision, particularly with respect to the interests of Ms A.

Expectations of the Australian community (para 13.3 of Direction No 79)

(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.

1. The Tribunal also refers to the expectations set out in para 6.3 of Direction No 79.
2. Direction No 79 expressly states that the Australian community expects two things: first, that non-citizens will obey the law in Australia,[164] and second, that the government should refuse or cancel visas of persons who commit serious crimes in Australia.[165] The first concerns norms of conduct to be expected of non-citizens, and the second expresses an expectation about the outcome of the exercise of the power conferred by s 501 in respect of a particular person who has not fulfilled the first expectation.[166]
3. The Applicant submitted that the expectations of the Australian community weighed in favour of the Applicant on the basis that:[167]

... the Australian community may consider that the Applicant's criminal history during his 3 years is serious, however we consider that the Applicant has taken great steps to rehabilitate himself during this period and that in consideration of the length of time he was a positive contributor to Australian society as an adult, the length of time he has been in Australia and the family connections he has that they would also consider he deserved a second chance. Particularly considering his daughters and the family.

1. The Respondent submitted that:[168]

... in accordance with paragraphs 6.3(3) of Direction 79 and in light of the applicant's serious offending, as well the potential consequences of further offending, the Australian community would expect that the Applicant should be seen as having forfeited the privilege of staying in Australia such that he should not hold a visa.

1. The meaning of para 13.3(1) of Direction No 79 and, in particular, how the expectations of the Australian community are to be determined has been the subject of significant judicial consideration. The Full Court of the Federal Court in FYBR v Minister for Home Affairs[169] (FYBR (FC)) affirmed the approach that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant's circumstances or evidence about those expectations. The Tribunal must give effect to the 'norm' stipulated in para 13.3(1). Thus, the provision has been described as having the effect of 'deeming' that the consideration weighs against revocation of the cancellation of an applicant's visa. That consideration is then to be weighed with and against other considerations.
2. While there is some difference in approach to the question of construction of the relevant clauses, the majority in FYBR (FC)[170] agree that it is not for a decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a primary consideration, but rather to identify the government's view regarding community expectations and to have due regard to that view. That view will be taken into account in considering the particular circumstances of the case and ultimately in determining whether there is 'another reason' to revoke the Cancellation Decision taking into account all the primary and other considerations.[171] Community expectations are merely one of the three primary considerations to be taken into account and to be weighed with the primary and other considerations. It follows that the ultimate decision may differ from community expectations.
3. It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the government's view 'deeming' the expectations of the Australian community to be that an applicant who has committed a serious crime, should not hold a visa. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or 'deemed' in Direction No 79, these expectations weigh against revocation of a cancellation decision with respect to 'serious crimes'.[172]
4. In the Tribunal's view, while the Applicant's offences were not of the kind identified to be 'serious' or 'viewed seriously' in Direction No 79, his offences were nonetheless very serious and as such the Australian community would expect that the Applicant would not continue to hold a visa. This is the community expectation which is 'deemed' by the government.
5. As noted above, the Tribunal has found that the Applicant has committed very serious offences. The Tribunal accepts the Respondent's submission that the Australian community expects that the Applicant would not continue to hold a visa. In addition, there is an expectation that non-citizens obey Australian law and that evidence to the contrary must weigh against the revocation of the Cancellation Decision. However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration. This will depend on the Tribunal's assessment of the totality of the relevant considerations including the primary and other considerations.
6. The Tribunal notes in this regard that para 6.3(5) of Direction No 79 relevantly provides that:

... Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in Australian community for most of their life, or from a very young age.

1. Having regard to the expression of the expectations of the Australian community which is contained in para 6.3(5), the Tribunal accepts that the community would have a higher level of tolerance for the criminal conduct of the Applicant as he has spent most of his life in Australia, from a very young age.

The Tribunal finds that the Applicant has committed crimes which are serious crimes and the Australian community would expect that he should not hold a visa. That is, the Australian community would expect the non-revocation of the Cancellation Decision. However, the Tribunal also finds that the community would be likely to have a higher level of tolerance for the Applicant's criminal conduct due to the fact that he has lived in Australia from a young age.

1. Although the expectations of the Australian community will weigh against revocation of the Cancellation Decision, the Tribunal must decide in the exercise of its discretion how much weight is to be given to this consideration. Having regard to the relevant authorities and to the particular circumstances of the Applicant's case, the Tribunal finds that the expectations of the Australian community weigh moderately against revocation of the Cancellation Decision.

(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

1. International non-refoulement obligations;
2. Strength, nature and duration of ties;

1. Impact on victims; 2. Extent of impediments if removed.

International non-refoulement obligations (para 14.1 of Direction No 79)

1. This consideration requires the Tribunal to consider whether Australia's international treaty obligations may be engaged in a particular case. In particular, the Tribunal is to consider whether non-refoulement obligations are owed to the Applicant for the purposes of determining whether the Cancellation Decision should be revoked.[173] A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.[174]
2. This part of Direction No 79 has been the subject of considerable and detailed judicial consideration, due at least in part to the interaction, or otherwise, of Australia's protection visa process and the engagement of its non-refoulement obligations to a particular individual. Sections 36(2)(a) and 36(2)(aa) of the Migration Act provide criteria for assessing claims for protection on refugee and complementary protection grounds. Particular considerations apply to such applications. As Direction No 79 notes, the Migration Act provisions reflect Australia's interpretation of its international non-refoulement obligations which arise under relevant international instruments to which Australia is a party.[175] Direction No 79 asserts that, therefore, if an applicant applying for revocation of a cancellation decision is able to make a protection visa application and have their claims determined through that process, it is unnecessary for the decision-maker to consider non-refoulement claims in deciding whether to revoke the cancellation of that applicant's visa.[176]
3. However, case law establishes that the Migration Act provisions are not an exhaustive expression of Australia's non-refoulement obligations[177] and that a decision-maker must consider whether clearly articulated claims of harm made by an applicant constitute another reason why the cancellation of their visa should be revoked.[178] Further, the harm comprehended by such obligations 'does not describe the universe of harm which could be suffered by a person on return to her or his country of nationality'.[179]
4. The relevant principles arising from the case law were summarised by the Full Court in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CTB19 [2020] FCAFC 166, [15] (CTB19) as follows:[180]

(1) The task of a decision-maker under s 501CA(4) is to determine whether there is "another reason" to revoke a cancellation decision;

(2) In discharging the duty under s 501CA(4), a decision-maker is required to have regard to a former visa holder's representations made in response to an invitation under s 501CA(3) as a whole. That is to say, viewed as a whole, the representations comprise a mandatory relevant consideration, but not every statement in the representations can be so described;

(3) Where a former visa holder makes a representation as to the harm that he or she may face if returned to their country of origin, the decision-maker needs to give consideration to it;

(4) There is a distinction between considering harm, or the risk of harm and hardship, on the one hand, and, on the other, considering whether or not the former visa holder is a person to whom non-refoulement obligations are owed ...

(5) The significance of any particular matter raised in the representations is to be assessed by reference to the manner in which it is expressed;

(6) The duty to consider representations made in support of revocation of a cancellation decision requires the decision-maker to engage in an active intellectual process with reference to those representations;

(7) The representations need to be "significant and clearly expressed" ... or "clearly articulated and substantial or significant"...

(8) Whether consideration has been given to a former visa holder's representations must be judged in the context of the material placed before the decision-maker by, or on behalf of, the former visa holder ...

(9) "Depending on the nature and content of the representations", the decision-maker may be required to make specific findings of fact, including on whether the feared harm is likely to eventuate ... However, the duty to consider a representation does not necessarily require the making of a finding of fact ...

(10) A finding that a decision-maker has not engaged in a meaningful or active intellectual process will not lightly be made by a court ... and

(11) Ultimately, each case turns on its own particular facts and circumstances.

1. In Omar v Minister for Home Affairs [2019] FCA 279 (Omar), Mortimer J drew a distinction between the question of whether an Applicant met the criteria for a protection visa and the question of whether the Applicant made claims that gave rise to an international non-refoulement obligation. Her Honour found that:[181]

In determining whether or not to exercise that power, if the person makes representations that she or he is a person to whom Australia has non-refoulement obligations, and sets out a serious and substantive basis in fact and in law for that representation, part of the statutory task involves consideration of that representation, just as it does any other serious and substantive representation advanced by that person.

(Emphasis added.)

1. The Tribunal notes that in his request for revocation of the Cancellation Decision lodged with the Department, the Applicant ticked 'yes' in answer to the question 'Do you have any concerns or fears about what would happen to you if you to were to return to your country of citizenship' (Question 13).[182] In a supporting document with respect to this question the Applicant noted that in addition to having concerns about a lack of support and the impact of return on his mental health, he was also concerned about his safety if returned to New Zealand. The Applicant stated that this was:[183]

Due to the fact that when my family left New Zealand and moved to Australia. It was for our own safety. See my father who has since rehabilitated himself and lives are very healthy and positive lifestyle was once an active gang member in New Zealand after falling out with the gang. He was abducted and beaten severely there was an Immediate threat to our safety and without notice we relocated to Australia in order to escape the threats to our safety. upon moving to Australia Our family was supported by my fathers parents who resided in Australia and his brother and sisters. who also relocated.

(Without alteration.)

1. The Applicant went on to state:[184]

However My mother's side of our family remained In New Zealand. And the majority of our family were still actively involved in gang activity. and affiliated with the gang. They were very resentful towards my mother's actions. Because she remained Loyal to my father in the best interests of our family so after we left New Zealand. We broke all connection with family and friends to escape any further retribution. If I was to return I hold fears for unknown retribution which may occur if my Family Identity was discovered by the outlaw motorcycle gang. Although these incidents took place many years ago. My parents remain fearful to return and since being Isolated from family and friends we have never reconnected since we arrived in Australia.

(Without alteration.)

1. The Applicant did not offer any other evidence to support these claims in the material he submitted to the Department.
2. Before the Tribunal, assisted by Ms Watts who is legally trained and a registered migration agent, the Applicant did not suggest that any issues with non-refoulement arose with respect to his circumstances. In written submissions his representative noted under the heading 'international non-refoulement obligations' that '[i]t is proposed this should be given neutral weight'.[185]
3. The Tribunal confirmed the Applicant's position with the Applicant's representative during opening submissions in the following exchange:[186]

TRIBUNAL: ... Ms Watts, can I just ask on that point of clarification in relation to the submissions regarding whether a non-refoulement issue arises, that the Applicant is not seeking or not submitting before the Tribunal that there is any non-refoulement obligation that is raised, or [any] issue in relation to his circumstances.

MS WATTS: No, there's no issue.

1. The Tribunal is mindful of its obligation to give consideration to any 'serious and substantive' representation advanced by an applicant seeking revocation of a Cancellation Decision. However, notwithstanding the Applicant's submissions to the Department and in light of the submissions and evidence offered in support of the present application, the Tribunal does not consider that any 'serious or substantive' representation was advanced by the Applicant that a non-refoulement issue arises with respect to his return to New Zealand. In this regard the Tribunal has considered the clear submissions made by the Applicant at the hearing and the lack of any evidence supporting or corroborating a claim that the Applicant faces a risk or chance of harm on return to New Zealand which would give rise to a non-refoulement obligation due to gang violence or for any other reason. In this regard the Tribunal notes that the Applicant's father, who the Applicant claimed before the Department had been the subject of the gang violence he feared, did not mention any concerns regarding the Applicant's possible return to New Zealand. He also did not suggest any concerns in this regard for himself, noting that if the Applicant were to return to New Zealand, he would find a way to visit him there. This evidence does not suggest that the Applicant's return to New Zealand would raise any issue of non-refoulement.
2. Accordingly, the Tribunal accepts the Respondent's submission that no issue of non-refoulement arises in the Applicant's circumstances and the Tribunal finds this consideration to be neutral in the Applicant's circumstances.

Strength, nature and duration of ties (para 14.2 of Direction No 79)

1. Paragraph 14.2(1) of Direction No 79 provides that the Tribunal should consider:

(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

1. How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

1. less weight should be given where the non-citizen began offending soon after arriving in Australia; and 2. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

1. The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

1. Relevantly, para 6.3(5) of the principles section of Direction No 79 states:

(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.

1. Additionally, para 6.3(7) of the Principles section of Direction No 79 states, in part:

(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.

1. The Applicant is now 34 years of age, having arrived in Australia when he was

a very young child.[187] The Tribunal finds that he arrived in Australia when he was almost three years old and has spent most of his life in Australia.[188] His first offence was as a juvenile around 13 years after he arrived in Australia.[189] Though he has travelled outside of Australia since arriving in 1989, he has never returned to New Zealand.[190] He came to Australia with his family members, all of whom remain here as permanent residents or citizens. He has a large extended family in Australia including seven aunts or uncles, 13 nieces or nephews and 13 cousins.[191] 2. The Applicant submitted that he has spent his time in Australia contributing positively to the Australian community by working in hospitality, by playing sport and by being a committed Christian and father.[192] 3. The Applicant's family members attested to his contribution to his family and community through sport, church and work.[193] His supporting statements speak to his commitment to his family, his role as the only brother to his sisters and the fact that he was remorseful for his offences which were committed as a result of drug addiction and a difficult family background. The Tribunal finds that the Applicant has made a positive contribution to the community in Australia through work, sport, church and other social interactions during the periods he remained in the community. Mr Headland testified as to the importance of the Applicant to the family as follows:[194]

Well, for starters it's my brother-in-law and he's the only brother the girls have got, you know, Ria, Jamie and Beau. In terms of the children, you know, our seven kids, Beau's kids, Jamie's kids, he's their only uncle on their side. He's a big difference. The older kids with my family, my seven kids ... they all know Uncle Ace, the other ones are a bit younger. They're missing him. They know that he's gone way, they know that there's some issues there to be sorted out. They don't fully understand but they miss him. That's their uncle, they love him.

1. With respect to the impact his removal would have on him:

Well, as I've mentioned with his sisters - they've been upset since this has been going on. You know, my missus cries to me a lot. It's getting to her. She's just had a newborn. I see the other sisters are upset. Ben's upset. My kids are upset, Ace's nieces and nephews. They miss him. You know, I don't usually allow my kids to go out for the day with most of their uncles and aunties but Ace, yes, it's Uncle Ace. He's fun, the kids love him and he takes them to the shops when he had the chance. He even took them bowling once which gave me and Ria a bit of time together. You know, he's a strong Maori man and I'm a strong Noongar mean, I understand him. We both agree on certain views, cultural views, and ideas. My kids love him from the Noongar standpoint and from their Maori standpoint. I need I'm here as a brother-in-law. I need him here, my kids need him here and his sisters need him here.

1. The Tribunal accepts that the Applicant's removal would have a significant impact on his extended family, who value his involvement with them.
2. The Tribunal notes that the Applicant does not have a domestic partner in Australia. He is no longer in a relationship with Ms Curtis and claims to have ended his relationship with Ms Biagioni. He did not suggest that he was in any current relationship in Australia. He has one daughter, one stepdaughter and a granddaughter who are all Australian citizens. He is in regular contact with his daughter and stepdaughter and has had contact with his granddaughter, who was born during the Applicant's current term of imprisonment.
3. The Applicant submitted that his daughter's mental health will be impacted by his removal and that her anxiety will worsen as a result. A letter from a treating physician, noting that Ms A has been suffering from anxiety since 2018 'on the background of parental separation', is before the Tribunal. However, the separation of Ms A from the Applicant has been caused by the Applicant's incarceration and will continue for some time, regardless of whether the Tribunal decides to revoke the Cancellation Decision or not. No medical evidence addressing the impact that the Applicant's removal would have on Ms A's mental health is before the Tribunal.
4. Ms Charlene Curtis, Ms A's mother, testified that she would suffer emotionally and financially if the Applicant is not in Australia to assist with raising their daughter. However, she also testified that she is currently meeting her daughter's costs by herself, including the cost of private schooling. The Applicant has only provided ad hoc financial support while he has been in prison and has been able to do so. This situation would be likely to continue throughout the Applicant's incarceration, which will continue until at least his parole date in 2023. Further, there is no evidence to suggest that the Applicant could not continue to provide financial support for his daughter from outside Australia. Notwithstanding this, the Tribunal accepts that the Applicant's removal would mean that the bulk of financial and emotional responsibility for Ms A would rest with Ms Curtis and that this would cause

Ms Curtis emotional and financial hardship. 5. The Applicant also submitted that he has a cultural connection to Australia though his eldest daughter, nieces and nephews. The Applicant submitted:[195]

The damage to these children that his removal from Australia will cause is much deeper than the consideration of simply being a primary carer. Issues pertaining to inter-generational trauma because of the perpetual absence of significant family role models upon the psyche and opportunities of indigenous children is considerable.

1. For the reasons outlined above, the Tribunal does not accept that there is sufficient evidence before it to support a finding that this type of intergeneration trauma would impact the Applicant's nieces and nephews as a result of the Applicant's removal to New Zealand. The Tribunal recognises that the family is close, however the Applicant and other witnesses indicated that they have occasional in-person contact for significant events like birthdays. Further there have been periods of family estrangement, where the Applicant has not been in contact with the family due to drug use. In any event, while Mr Headland testified that as a Noongar man he does not support the Applicant's removal, he did not mention intergenerational trauma or any link between the Applicant's removal and any family history in this regard.
2. With respect to the Applicant's adult stepdaughter, while she identified herself as a Noongar woman, she said that she had no contact with her Indigenous father and has no contact with his family. She did not suggest in evidence that she would suffer intergenerational trauma due to her Indigenous heritage if the Applicant were removed to New Zealand, but spoke strongly of her connection to him and desire for him to be involved in the life of her daughter. The Tribunal accepts that his removal would have a significant impact on her in that regard. As her daughter has had little contact with the Applicant to date, the impact on Ms AD would likely be less significant. However, the Tribunal accepts that the Applicant's removal would deny Ms AD the opportunity to have a close in-person relationship with her grandfather in the future.
3. The Tribunal finds that the Applicant has ties to the Australian community. He has a strong connection to Australia through his Australian citizen children, grandchild and extended family members in Australia. The Tribunal accepts that Ms Charlene Curtis has suffered financial stress as a result of the Applicant being in prison and that these financial pressures may continue if the Applicant is removed.
4. The Tribunal places weight on the fact that the Applicant has been in Australia for most of his life and has personal and professional ties to Australia. There has been one extended period of adulthood where he led a prosocial life, being the period 2005 to late 2014, and even in periods where he has been engaged in drug use and offending, there was evidence that he has continued to play a positive role in his children's lives.
5. The Tribunal places particular weight on the impact of non-revocation of the Cancellation Decision on his Australian citizen daughters and granddaughter. The Tribunal finds this consideration weighs strongly in favour of the revocation of the Cancellation Decision.

Impact on Australian business interests (para 14.3 of Direction No 79)

1. Paragraph 14.3(1) of Direction No 79 provides that the Tribunal is to consider the:

(1) Impact on Australian business interests if the non-citizen's visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

1. There is no evidence before the Tribunal that the non-revocation of the Cancellation Decision will have a relevant impact on Australian business interests.[196]
2. Mr Kake and Mr Headland testified that the Applicant would be able to work for the company with whom his father and brother-in-law are employed by in Kambalda, being CBC Engineering.[197] There was no evidence from the company confirming this arrangement, however the Tribunal accepts that the Applicant may be able to find employment with CBC Engineering if he is released from prison and remains in Australia. However, there was no evidence before the Tribunal that non-revocation of the Cancellation Decision would 'significantly compromise the delivery of a major project, or delivery of an important service in Australia'.
3. Accordingly, the Tribunal finds this consideration to be neutral in the Applicant's circumstances.

Impact on victims (para 14.4 of Direction No 79)

1. Paragraph 14.4(1) of Direction No 79 provides that the Tribunal is to consider the:

(1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.

1. Other than with respect to the offences where his former partner, Ms Biagioni was the victim (the aggravated burglary and damage to property offences), there is no evidence before the Tribunal regarding the impact of a decision not to revoke the Cancellation Decision on the victims of the Applicant's offending. This is perhaps unsurprising given the nature of many of the offences for which the Applicant has been convicted as being offences in relation to which there is no specific victim.
2. The Applicant submitted information to the Delegate regarding the impact of a decision not to revoke the Cancellation Decision on Ms Biagioni.[198] At the time this information was provided to the Department, the Applicant indicated that Ms Biagioni was prepared to relocate with him to New Zealand if the Cancellation Decision was not revoked but submitted that it was in the couple's best interests to remain in Australia together. The Applicant also noted that Ms Biagioni was dealing with family issues including mental health issues for her mother and aging grandparents.[199] There was no evidence provided by Ms Biagioni herself.
3. At the hearing the Applicant stated that he and Ms Biagioni were no longer in a relationship, having broken up approximately 12 months prior to the hearing.[200]
4. The Tribunal accepts that non-revocation of the Cancellation Decision may have had a negative impact on Ms Biagioni's interests were she still in a relationship with the Applicant. However, as the Tribunal has accepted she is not currently in contact with the Applicant and he has not indicated any prospect of them re-entering a relationship, the Tribunal considers that a decision not to revoke the Cancellation Decision will have minimal impact on the interests of Ms Biagioni.
5. There is no evidence about the impact on members of the Australian community more generally. Aside from the risks of harm to the community, which are discussed above in the context of the protection of the Australian community, the Tribunal finds that there is likely to be little, if any, specific impact arising from a decision not to revoke the Cancellation Decision.
6. Given the evidence before the Tribunal including with respect to Ms Biagioni, the Tribunal finds this consideration is neutral.

Extent of impediments if removed (para 14.5 of Direction No 79)

1. Paragraph 14.5(1) of Direction No 79 provides that the Tribunal is to consider the:

(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

1. The non-citizen's age and health;
2. Whether there are substantial language or cultural barriers; and
   1. Any social, medical and/or economic support available to them in that country.

1. The Applicant arrived in Australia when he was almost three years old. The Applicant submitted that he would face significant difficulties in establishing himself in New Zealand, as he has built his life here and no longer has ties to New Zealand. He submitted that he would not be entitled to prison rehabilitation programs and that he has 'limited opportunity to claim other services'.[201] A number of family members attested to a concern (in similar terms) that the Applicant would not have support in New Zealand and that he would not survive without their support.[202]
2. The Respondent submitted that the Applicant would have the same access to social, medical and economic support as other citizens of New Zealand. The Respondent further submitted that it was 'common knowledge' that the standards of health care, education, social welfare and housing support in New Zealand would be comparable to those in Australia.[203]
3. As the Applicant has spent most of his life in Australia and his family is here, the Tribunal accepts that the Applicant is likely to face significant social and emotional difficulties if he is returned to New Zealand. However, the Tribunal also respectfully agrees with the view of Anastassiou J, as cited by the Respondent, that the standards of social and government services available to the Applicant in New Zealand would be comparable to those in Australia. Indeed, the bilateral migration arrangements between Australia and New Zealand under which the Applicant's family came to Australia are founded upon this understanding.
4. There is no medical evidence before the Tribunal that the Applicant suffers from any physical or mental health issues which might give rise to an impediment upon his return to New Zealand.
5. The Applicant submitted that his father and sister would be unable to visit him in New Zealand due to their criminal convictions in Australia. As they are permanent residents, the Tribunal infers that submission is based on a concern that they would be refused a visa to re-enter Australia on character grounds. On the material before the Tribunal, it would be speculative for the Tribunal to assume the outcome of any future visa application by Mr Kake or Ms Harris. In any event, even if the submission were accepted, any separation arising from these circumstances would be due to a failure by the Applicant's father and sister to meet the character requirements for the grant of a visa. The Tribunal does not consider that it would be appropriate to place weight on this consideration for that reason. In any case the Tribunal does not consider that it would weigh in favour of revocation of the Cancellation Decision.
6. The Applicant came to Australia as a child but testified that while in prison he has been undertaking courses on Maori language in a bid to better understand and connect with his Maori culture. The Tribunal considers that this may assist him in connecting with Maori culture on return to New Zealand, however the Tribunal acknowledges his extended absence and unfamiliarity with the country will present difficulties for his resettlement there. The evidence suggests that he has extended family members in New Zealand though the Tribunal accepts that there was no evidence of contact with family members in New Zealand and they are unlikely to offer support to him upon relocation.
7. The Applicant has skills and experience in the hospitality industry as a chef and more, recently running the prison kitchen. The Tribunal acknowledges the Applicant's industry experience is in a sector hit particularly heavily by the COVID-19 pandemic. However, the Tribunal finds his skills and work experience would likely assist him to find employment if he is returned to New Zealand once COVID-19 restrictions have eased. The evidence from the prison demonstrates the Applicant's positive work ethic. The Tribunal finds that he is unlikely to face any particular barriers in finding employment in New Zealand.
8. The principal impediments identified by the Applicant were the separation from his support network, the need to establish himself in New Zealand, and the impact his relocation would have on his daughters and family members. The Tribunal accepts that these are challenges which would be faced by the Applicant and those close to him if he were removed to New Zealand. However, in considering the available evidence, such challenges do not, in the Tribunal's view, amount to impediments if the Applicant is to be returned to New Zealand.
9. On balance, the Tribunal finds that the Applicant is likely to experience some challenges in re-establishing himself in New Zealand. The Tribunal accepts that he may face social and emotional difficulties because his support network is in Australia. If he is returned, he may be separated from his daughters and granddaughter.
10. No specific submissions were made with respect to the impact of COVID-19 on the Applicant's circumstances. If the Tribunal decides not to revoke the Cancellation Decision, the Applicant must be removed to New Zealand as soon as is reasonably practicable (under s 198 of the Migration Act), though this is unlikely to be until he is released from prison. Given current restrictions on international travel due to the COVID-19 pandemic, it may not be possible for the Applicant to be removed in the immediately foreseeable future. Thus, if the Tribunal decides not to revoke the Cancellation Decision and depending on the timing of his release from prison, the Applicant may face an additional period of immigration detention before it will be reasonably practicable to remove him to New Zealand. However, as noted by Member Eteuati in FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294, [299] '[t]his may result in prolonged but not indefinite detention for the Applicant until the risk presented by the virus ... subsides'.[204]
11. The Tribunal accepts that current flight restrictions may result in the Applicant spending additional time in immigration detention pending his removal. The Tribunal also accepts that the prospect of additional time in immigration detention may cause stress to the Applicant. The Tribunal further accepts that public health responses to COVID-19 may impact the Applicant's capacity to access services or seek employment upon return to New Zealand and on his family's capacity to visit him there. This may extend the time it takes the Applicant to resettle in New Zealand, increasing the stress of relocation for the Applicant and the impact of separation on his family.
12. In summary, the Tribunal finds that Applicant would suffer hardship if he were returned to the New Zealand, which weighs moderately in favour of revocation of the Cancellation Decision. However, the Tribunal does not regard the challenges faced by the Applicant as significant impediments to his return and accordingly places limited weight on this consideration.

1. Direction No 79 provides some guidance as to how a decision maker should apply the primary and other considerations and the weight to be given to them. Paragraphs 8(3), (4) and (5) are relevant here, and state:

(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4) Primary considerations should generally be given greater weight than the other considerations.

(5) One or more primary considerations may outweigh other primary considerations.

1. The treatment of primary and other considerations has been subject to judicial consideration.[205] According to the authorities, in considering the primary and other considerations the Tribunal must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more heavily than other considerations. Although, as a general rule, primary considerations should be given greater weight, the Tribunal must not fetter itself against giving another consideration greater weight than a primary consideration if, in the circumstances of the case, it is the correct and preferable decision to do so.[206]
2. The Tribunal has had regard to these principles in balancing the primary and other considerations in this decision, which are summarised in the conclusion below.

1. The Applicant does not pass the character test under s 501 of the Act.
2. The Tribunal has therefore considered whether there is 'another reason' why the Cancellation Decision should be revoked, having regard to the primary and relevant other considerations in Direction No 79.
3. In determining the weight to be applied to each consideration, the Tribunal has had regard to all of the Applicant's circumstances, including his offending history and personal circumstances.
4. The Tribunal has considered the primary considerations, including the protection of the Australian community. The Tribunal has had regard to the serious nature of the offences committed by the Applicant, reflected in repeated custodial sentences including his latest sentence of four years' imprisonment, and the risk of harm to the community were he to reoffend. The Tribunal has found the nature of the Applicant's offending, involving serious drug offences including trafficking, property, firearms offences and traffic offences, to be very serious. The Tribunal has had regard to the Applicant's current demonstration of remorse, his stated commitment to rehabilitation and to his prior period of prosocial drug-free and offence-free behaviour as an adult. However, the Tribunal has also had regard to the lack of clinical evidence of the Applicant's rehabilitation needs and recidivism risk factors. Further, the Tribunal has considered the harm which may be caused to the community, should the Applicant reoffend in a similar manner. Considering these factors, the Tribunal has found that the protection of the Australian community weighs strongly against revocation of the Cancellation Decision.
5. The Tribunal has also found that due to the serious nature of the Applicant's offences, the expectations of the Australian community would be that the Applicant should not hold a visa and this consideration weighs against revocation of the Cancellation Decision. Having regard to all the circumstances, the Tribunal finds that while this consideration weighs against revocation of the Cancellation Decision, as the Applicant has been in Australia since a very young age and has an established family here, the community would nevertheless have a greater tolerance for his offending. Accordingly, the weight to be given to this factor against revocation is moderate.
6. The Tribunal has considered carefully the best interests of the minor children whose best interests are identified as being impacted by the decision. The Tribunal has had particular regard to the Applicant's biological daughter, Ms A and his granddaughter, through his stepdaughter, Ms AD. The Tribunal accepts that it is in the best interests of Ms A and Ms AD that the Cancellation Decision be revoked. The Tribunal also considers it is in the best interests of the other children, the Applicant's nieces and nephews, that the Cancellation Decision be revoked, albeit it the Tribunal considers their interests weigh less heavily than that of Ms A and Ms AD. On balance, the Tribunal found that that this consideration weighs strongly in favour of revocation of the Cancellation Decision.
7. The Tribunal has also had regard to the impact revocation of the Cancellation Decision would have on the victims of the Applicant's offending. However, as there was no evidence from the victim of the aggravated burglary and commit offence, or anyone in close contact with her, on the impact such a decision would have on her, the Tribunal has found this consideration to be neutral. The Tribunal also found the impact of non-revocation of the Cancellation Decision on Australian business interests to be neutral in the Applicant's circumstances.
8. The Tribunal has had regard to the relevant other considerations, including the strength, nature and duration of the Applicant's ties to Australia, which the Tribunal found weighed strongly in favour of revocation of the Cancellation Decision. The Tribunal found that the impediments the Applicant would face if he was returned to New Zealand also weighed moderately in favour of revoking the Cancellation Decision.
9. The Tribunal also considered whether non-revocation of the Cancellation Decision would engage Australia's non-refoulement obligations. However, the Tribunal was not satisfied that there was sufficient evidence to support the Applicant's claim before the delegate that non-refoulement obligations arise as a result of a well-founded fear that he may face serious or significant harm in New Zealand due to gang violence against his parents. This claim was not pursued before the Tribunal and the Tribunal found this consideration to be neutral.
10. Cases like the Applicant's present the Tribunal with a difficult challenge. He has a history of serious offending against the laws of Australia including in relation to drugs. The community's tolerance for this type of offending is low because of the unacceptable risk it presents to the Australian community and the wide-ranging harm it causes. This is reflected in the imprisonment sentences that the Applicant has received, which the Tribunal considers to be significant. The Applicant has acknowledged the impacts of his offending but has done so after repeat offending. He has demonstrated efforts at rehabilitation however his capacity to maintain that present commitment is untested in the community and there is a degree of uncertainty in his plan for treatment and rehabilitation on release. He has previously failed to maintain a drug free, offence free lifestyle following release from prison. Further, the Applicant has a history of disregarding the laws which the community puts in place to protect its members from harm. This includes serious driving offences.
11. Balanced against this, it must be recognised that the Applicant has been in Australia most of his life and considers himself to be Australian. Many in the community would share this view. He has strong ties to the community, principally through his family members. He has children here whose interests would be best served by him remaining in Australia. While he faces challenges on return to New Zealand, on the evidence and taking into account his individual circumstances, the Tribunal does not regard these challenges to be insurmountable.
12. In weighing these considerations against one another, the Tribunal considers that although there are strong countervailing considerations that favour revocation of the Cancellation Decision, including the best interests of minor children, the Applicant's strong ties to Australia and the extent of impediments if removed, the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh those considerations.
13. In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction No 79, the Tribunal is not satisfied that there is 'another reason' why the Cancellation Decision should be revoked. The correct and preferable decision is to affirm the Reviewable Decision.

1. The decision of the delegate of the Respondent, dated 11 January 2020, not to revoke the cancellation of the Applicant's Class TY Subclass 444 (temporary) Visa is affirmed.

I certify that the preceding 272 (two hundred and seventy- two) paragraphs are a true copy of the reasons for the decision herein of Member S Burford

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

Eve Cassandra Watts, Inclusive Migration Australia

ANNEXURE A - TABLE OF THE APPLICANT'S OFFENDING

Sold or supplied, or offered to sell or supply, a trafficable quantity of methylamphetamine

Three months' imprisonment (concurrent from 17 December 2019)

Possessed drug paraphernalia in or on which there was a prohibited drug or plant

Possession of stolen or unlawfully obtained property

18 months' imprisonment (cumulative from 18 November 2018)

Possession of a prohibited drug with intent to sell or supply (methylamphetamine)

12 months' imprisonment (cumulative from 18 November 2018)

Three months' motor vehicle license disqualification (cumulative)

Any person in possession of any firearm/ammunition and is not the holder of a licence/permit commits a crime

Any person in possession of any firearm/ammunition and is not the holder of a licence/permit commits a crime

Possess drug paraphernalia containing prohibited drug/plant

Possess drug paraphernalia containing prohibited drug/plant

No authority to drive - never held Australian license and is disqualified

Nine months' motor vehicle license disqualification (cumulative)

Three months' motor vehicle license disqualification

Reckless driving - dangerous to public or person (to escape pursuit)

10 months' imprisonment (concurrent from 20 October 2015);

Two years' motor vehicle license disqualification (concurrent)

Failed to stop when called upon to do so - circumstance of aggravation

Six months' imprisonment (concurrent from 20 October 2015);

Two years' motor vehicle license disqualification (concurrent)

No authority to drive - never held and disqualified

Nine months' motor vehicle license disqualification

Three months' motor vehicle license disqualification (concurrent);

ANNEXURE B - LIST OF DOCUMENTS ADMITTED INTO EVIDENCE

At the hearing, the Tribunal admitted the following documents into evidence:

• birth certificates[207] (A1);
• Ace Harris criminal record (referred to as statutory declaration appendix one in several witness statements) (A2);
• statutory declaration of Charlene Curtis dated 23 February 2021 (A3);
• witness statement of Ace Harris dated 22 February 2021 (A4);
• statutory declaration of Benjamin Kake dated 19 February 2021 (A5);
• statutory declaration of Daphne Naussedat dated 23 February 2021 (A6);
• witness statement of Darren Naussedat (unsigned) (A7);
• statutory declaration of Ria Harris dated 23 February 2021 (A8);
• statutory declaration of Shanaye Curtis dated 23 February 2021 (A9);
• statutory declaration of Jade Bennett dated 23 February 2021 (A10);
• witness statement of Stanley Headland Snr (unsigned) (A11);
• Statement from Ace Harris dated 16 March 2021 (A12);[208]
• statutory declaration of Stanley Charles Headland (Jnr) dated 19 February 2021 (A13);
• summary of Aboriginal and Torres Strait Islander Stolen Generation Report the Healing Foundation, undated (A14);
• Letter from Dr Nay Latt, Prime Medical Centre dated 20 February 2021 re Ms A (A15);
• Department of Justice, Western Australia, 'Individual Management Plan' for Ace Harris created 4 December 2020 (dated 12 February 2021) (A16);
• Department of Justice, Western Australia, 'Prisoner Performance Feedback', Created 4 December 2021 (dated 12 February 2021) (A17);
• Corrective Services, Department of Justice, Western Australia, 'Visits History - Offender (Offender Copy)', date range 18 November 2021 - 5 February 2021 (A18);
• copies of eight photographs identified as the Applicant's childhood photographs (A19);
• copies of 40 photographs identified as the Applicant's family photographs (A20);
• 'The Family Tree on the Father's Side Only' identified as the Applicant's family tree in Australia (A21);
• letter from Andrea Thygesen, Registrar, Apprenticeship and Traineeship Support Network, Department of Education and Training, Western Australia, dated

22 November 2004, titled 'Apprenticeship: Ace Benjamin Harris' regarding offer of cooking apprenticeship (A22);

• letter from Jill Wynn, Marketing Manager, Westfield, dated 22 December 1998 re Westfield School Sports Awards in region Junior Metropolitan (A23);
• order of service, Jack Harrison Dunn (27 October 1986 - 28 January 2003) and order of service, Joshua Antonio Zinni-Forbes (1 March 1996 - 17 March 2013) marked 'death notices for Applicant's friends'; (A24);
• Applicant's baptism certificate, World Impact Church, dated 11 May 2008 (A25);
• Aboriginal and Torres Strait Islander Stolen Generation Report, Australian Institute of Health and Welfare, Canberra, 2018 (A26);
• exhibit A27 omitted and not admitted;
• letter of Tui Naussedat, (unsigned and undated) (A28);
• letter of Hope Naussedat, (unsigned and undated) (A29);
• copies of five sports photographs including the Applicant (A30);
• graduation certificate in the name of the Applicant, 10 week basic Maori language course, Kura Kia Kaha, 30 September 2020; certificate of completion in the name of the Applicant, Discovering God, September - December 2019; Certificate 2021 Maori Awards in the name of the Applicant, Kapai te mahi (undated); one star statement in the name of the Applicant, one star food safety and hygiene training at Acacia Prison, 24 May 2020 (A31);
• Department of Justice, Western Australia, 'alcohol and other drugs certificate of participation' in the name of the Applicant, participation in brief intervention therapy group dated 7 March 2019; Lifeskills certificate of completion in the name of the Applicant dated 10 June 2019; letter from Programs Department, Acacia Prison dated 21 December 2020 confirming the Applicant's attendance at 12 recovery from addiction meetings at Acacia Prison; Outcare certificate of participation in the name of the Applicant regarding participation in a Career Development Workshop on 11 April 2019; certificate for the Green Lighthouse Program, certifying the Applicant completed a six week voluntary drug and alcohol mentoring program in January 2020 at Acacia Prison; certificate of completion for the Alpha Course in the name of the Applicant, July - September 2020 (A32);
• Applicant's revised Statement of Facts, Issues and Contentions, dated 19 March 2021 (A33);
• Respondent's Statement of Facts, Issues and Contentions, dated 10 March 2021 including annexure A 'Final Report of the National Ice Taskforce 2015 (R1);
• section 501G documents (G1-G30), filed with the Tribunal 4 February 2021 (R2); and
• tender bundle, filed with the Tribunal 11 March 2021 (R3).

[21] A11; A13; transcript, pages 62-66.

[24] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121, 136 [66].

[25] Migration Act s 499.

[26] Direction No 79 is the direction currently in force.

[27] Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141; (2014) 227 FCR 562, 585 [80]-[81] (Lesianawai). The Court was discussing Direction No 55, but the reasoning applies equally to Direction No 79.

[30] R3, page 301; transcript, pages 31 and 33.

[32] Dates cited are dates of court results.

[44] Lau and Minister for Immigration and Border Protection [2017] AATA 138 per Deputy President Kendall (cited by the Respondent).

[45] PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] (cited by the Respondent).

[53] citing Minister for Home Affairs v Stowers [2020] FCA 407 at [45].

[55] Paragraph 6.3(1) of Direction No 79.

[56] Direction No 79, para 13.1.1(1)(c).

[57] Direction No 79, para 13.1.1(1)(f).

[59] Direction No 79, para 13.1.1(1)(g);

[60] Direction No 79, para 13.1.1(1)(h).

[61] Direction No 79, para 13.1.1(1)(i).

[63] Direction No 79, para 13.1.1(1)(h).

[64] Direction No 79, para 13.1.2(1)(a).

[65] Direction No 79, para 13.1.2(1)(b); Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, 389 [111] cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424, 444 [95], as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117, 124-125 [42]-[43]. See also Senior Member Dr M Evans-Bonner in CZCV and Minister for Home Affairs [2019] AATA 91, [56].

[66] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.

[70] R1, Annexure A; Department of the Prime Minister and Cabinet, Final Report of the National Ice Task Force (2015).

[74] Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, 389 [111] cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424, 444 [95], as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117, 124 [42]-[43]. See also Senior Member Dr M Evans-Bonner in CZCV and Minister for Home Affairs [2019] AATA 91, [56].

[75] R1, Annexure A; Department of the Prime Minister and Cabinet, Final Report of the National Ice Task Force (2015) iii.

[76] R1, Annexure A; Department of the Prime Minister and Cabinet, Final Report of the National Ice Task Force (2015) iv.

[79] See, for example, Morris v Minister for Immigration and Border Protection [2018] AATA 3374 at [65]-[66], and Wang and Minister for Immigration and Border Protection [2014] AATA 89 at [7] where Senior Member Bell noted the purpose of such laws, including laws against driving while under a suspended licence, or while disqualified, are to 'protect users of the road' and '... go to the essential safety of the community'.

[80] Direction No 79, para 13.1.2(1)(b).

[91] See statements A3, A5, A6, A7, A8, A9, A10, A11, A13.

[95] See references and materials relating to Ms A: R2, G17, page 75; R2, G22; A3 at [10]-[14]; A9 at [11]-[16]; A6, page 2; A10 at [8]-[9]; A15.

[96] A9 at [23]-[25]; A3 at [22].