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[2022] AATA 430
General information, not legal advice.
Administrative Appeals Tribunal of Australia
2022-03-14
Original judgment source is linked above.
The Reviewable Decision, being the decision of a delegate of the Respondent dated 17 December 2021 not to revoke the cancellation of the Applicant's Visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.
..............[Sgd]...................................................
MIGRATION - decision of delegate of Minister not to revoke mandatory cancellation of the Applicant's Visa - character test - substantial criminal record - offences include drug and weapons offences - Direction No 90 - primary and other considerations - protection of the Australian community - nature and seriousness of the conduct - risk to the Australian community - best interests of the Applicant's minor daughters - difficulties in assessing best interests of children due to uncertain future events and uncertainty about who may be able to care for them - expectations of the Australian community - extent of impediments if removed to New Zealand - links to the Australian community - strength, nature and duration of ties to Australia - Applicant is a 38-year-old man who began living in Australia in 2012 - there is not another reason to revoke the Cancellation Decision - Reviewable Decision affirmed
FTDN and Minister for Home Affairs [2019] AATA 1301
JFSQ and Minister for Home Affairs [2019] AATA 616
Kohli and Minister for Immigration and Border Protection [2017] AATA 1326
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
SCJD and Minister for Home Affairs [2018] AATA 4020
Subasinghe and Minister for Home Affairs [2019] AATA 751
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Webb v Minister for Home Affairs [2020] FCA 831
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
Commonwealth of Australia, Department of the Prime Minister and Cabinet, Final Report of the National Ice Taskforce, 2015
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021) paras 4(1), 5.1, 5.1(3), 5.2, 5.2(4), 6, 7, 8, 8(1), 8(2), 8(3), 8(4), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(a)(i), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.2(2), 8.3, 8.3(3), 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(f), 8.3(4)(g), 8.3(4)(h), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 8.4(3), 8.4(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4.1, 9.4.1(1), 9.4.1(2), 9.4.2(3)
1. The Applicant is a 38-year-old man who is a citizen of New Zealand. He first travelled to Australia in May 1993. Between January 1998 and October 2006, he travelled to Australia for several short visits. He began living in Australia permanently in June 2012 (G9/103-104).
2. Between November 2001 and November 2008, the Applicant committed numerous criminal offences in New Zealand including wilful damage, burglary, stealing a motor vehicle and breaches of community orders and home detention conditions. He received fines and community work for these offences. The Applicant also committed three traffic/ driving related offences in New Zealand. One was for speeding and two were for driving under the influence of alcohol (G5/22-23).
3. After arriving in Australia, the Applicant committed two traffic/ driving offences in October 2014, and a further two in January 2016 for which he received fines (R2/138-139).
4. On 28 August 2020, the Applicant was sentenced in the Perth District Court for two offences he committed on 10 December 2019. These offences were "possession of a prohibited drug with intent to sell or supply (methylamphetamine)" for which he was sentenced to 24 months' imprisonment; and "possession of stolen or unlawfully obtained property" for which he was sentenced to a six-month cumulative term of imprisonment (R2/138). The Applicant committed these offences whilst he was on bail for 12 other offences committed on 16 October 2019 (G6/27).
5. Consequently, the Applicant's Class TY Subclass 444 Special Category (Temporary) visa (Visa), was cancelled on 16 October 2020 under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (G20/105) (Cancellation Decision). The basis of the Cancellation Decision was that the Applicant did not pass the character test because he had a substantial criminal record and was currently serving a full-time sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory. The notice of the Cancellation Decision advised the Applicant that he could make representations to seek revocation of the Cancellation Decision.
6. Previously, on 1 September 2020, the Applicant was sentenced in the Magistrates Court for the 12 offences committed on 16 October 2019. These offences were drug and weapons possession offences, as well as the possession of stolen property. He received numerous fines and was sentenced to three concurrent terms of imprisonment of one month, and two terms of two months (R2/137-138).
7. On 12 October 2020, several days before the Cancellation Decision was made, the Applicant was sentenced in the Magistrates Court for five other drug possession offences (including possessing cannabis, MDMA and LSD, and drug paraphernalia) which he committed on 10 December 2019. He received a global $2000 fine (R2/136).
8. In a request dated 5 November 2020, the Applicant requested revocation of the Cancellation Decision. He provided a personal circumstances form and supporting evidence including character references, his parole plan, a program completion report, and certificates for courses he completed in prison (G9-G18).
9. After considering the Applicant's representations, on 17 December 2021, a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (G3/7). This is the Reviewable Decision currently before me.
10. The Applicant was notified of the Reviewable Decision on 20 December 2021, when it was hand delivered to him in prison (G3/4; G22/135).
11. On 28 December 2021, the Applicant lodged an application in the General Division of this Tribunal seeking a review of the Reviewable Decision (G1/1; G2/3). Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act.
12. Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the
84-day period started running from 20 December 2021, meaning that I must hand down a decision on or before 14 March 2022.
(a) whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b) if the Applicant does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
14. I heard this application on 28 February 2022 at the Perth Registry of the Tribunal.
15. The Applicant was self-represented. Due to difficulties with obtaining a videoconference connection to the prison where the Applicant is currently serving his sentence, the Applicant appeared by telephone.
16. The Respondent was represented by Ms E Tattersall of Sparke Helmore Lawyers, who appeared by Microsoft Teams.
17. The Applicant gave oral evidence at the hearing and was cross-examined. He did not call any other witnesses. I found the Applicant to be frank and honest when giving his evidence. He was not evasive and did not attempt to minimise his offending.
18. I admitted the following documents into evidence at the hearing:
(a) Handwritten statement from the Applicant dated 15 February 2022 attaching three character references:
(i) Email from the Applicant's sister, JM, dated 21 January 2022;
(ii) Handwritten statement from the Applicant's father, SM, dated 24 January 2022; and
(iii) Email from the Applicant's mother, JC, dated 6 February 2022 (Exhibit A1);
(b) Section 501G Documents, labelled G1 to G22, comprising pages 1 to 135 (Exhibit R1);
(c) Summons Bundle, comprising pages 1 to 177 (Exhibit R2);
(d) Upcoming matter listings from the eCourts portal for the Applicant (Exhibit R3); and
(e) Upcoming matter listings from the eCourts portal for the Applicant's wife, from whom he is separated (Exhibit R4).
19. Prior to the hearing the Respondent also filed a Statement of Facts, Issues and Contentions dated 25 January 2022 (SFIC). The Applicant did not file a SFIC.
20. Section 501(3A) of the Migration Act provides that:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
21. Section 501(6)(a) of the Migration Act provides that:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
22. A "substantial criminal record" is defined by s 501(7)(c) of the Migration Act as follows:
(7) For the purposes of the character test, a person has a substantial criminal record if: ...
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
23. Section 501CA of the Migration Act further provides, in part:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
24. Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
25. Further, s 499(2A) of the Migration Act states that "[a] person or body must comply with a direction under subsection (1)".
26. On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 90) under s 499 of the Migration Act, which commenced operation on 15 April 2021. This Direction replaced the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018).
27. Paragraph 5.1 of Direction No 90 sets out "[o]bjectives", with para 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
28. Paragraph 5.2 of Direction No 90 sets out "[p]rinciples" which "provide the framework within which decision-makers should approach their task of deciding whether to ... revoke a mandatory cancellation under section 501CA". The principles are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
29. Informed by the principles set out in para 5.2 of Direction No 90, the decision-maker (in this case, the Tribunal - see definition of "decision-maker" in para 4(1) of Direction No 90) must consider the primary considerations listed in para 8 of Direction No 90, and the other considerations listed in para 9 where relevant (para 6 of Direction No 90).
30. Specifically, para 8 of Direction No 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
31. Paragraph 9 of Direction No 90 lists other considerations to be considered as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
- strength, nature and duration of ties to Australia;
- impact on Australian business interests
32. Guidance as to how a decision-maker is to apply the considerations in
Direction No 90 can be found in para 7, "[t]aking the relevant considerations into account", which provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
33. The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
34. 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) of the Migration Act.
35. 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).
36. As noted in the "background" section above, on 28 August 2020, the Applicant was sentenced in the Perth District Court to a 24-month concurrent term of imprisonment for the offence of "possession of a prohibited drug with intent to sell or supply (methylamphetamine)"; and a six-month cumulative term of imprisonment for the offence of "possession of stolen or unlawfully obtained property", which he committed on 10 December 2019 (R2/138). The Applicant has therefore been sentenced to a term of imprisonment of 12 months or more, and as a result, does not pass the character test by operation of s 501(7)(c) of the Migration Act.
37. Therefore, I must now consider whether there is "another reason" why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 90)
38. Paragraph 8.1(1) of Direction No 90 provides that:
(1) When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or 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.
39. Paragraph 8.1(2) of Direction No 90 then provides:
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 90)
40. Paragraph 8.1.1(1) of Direction No 90 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 the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
41. Before evaluating the nature and seriousness of the Applicant's offending (para 8.1.1(1) of Direction No 90) I will briefly outline his offending history in Australia, which is summarised in his History for Court - Criminal and Traffic (R2/136-139).
42. In October 2014, the Applicant committed the offence of "exceed speed limit in a speed zone; between 10 and 19km/h" and "unauthorised driving by learner drivers". In January 2016, he committed the offence of "unauthorised driving by learner drivers" and "used an unlicensed vehicle" (R2/138-139). He received fines for these offences.
43. The "unauthorised driving by learner drivers" offences involved the Applicant driving without an instructor in the car while he was on his "L plates", and with children in the car (transcript/22).
44. Additionally, during cross-examination the Applicant admitted to driving under the influence of drugs to the family home. He did so after he had stopped living there, so that he could walk his children to school (transcript/24). However, he has no charges or convictions for driving under the influence of drugs.
45. These are the offences which formed the basis of the mandatory cancellation of the Applicant's Visa. They were committed on 10 December 2019, whilst he was on bail for 12 other offences committed on 16 October 2019.
46. The specific offences were: "possession of a prohibited drug with intent to sell or supply (methylamphetamine)" for which he was sentenced to 24 months' imprisonment; and "possession of stolen or unlawfully obtained property" for which he was sentenced in the Perth District Court on 28 August 2020 to a six-month cumulative term of imprisonment (R2/138), being a total term of 30 months' imprisonment.
47. These offences related to the Applicant possessing 10.09 grams of methylamphetamine, which he was selling to make a profit. He also had $24,395 in cash, which the sentencing Judge stated would have been used by the Applicant to "reduce a drug debt" (G7/34; R2/175).
48. The Applicant committed a further five offences on 10 December 2019 for which he was sentenced to a global $2000 fine by the Magistrates Court on 12 October 2020.
49. These offences were: "use or possess prohibited drug namely lysergic acid diethylamide (LSD)"; "possessed drug paraphernalia in or on which there was a prohibited drug or plant" (two counts); "possess a prohibited drug (MDMA)"; and "possess a prohibited drug (cannabis)".
50. On 1 September 2020, the Applicant was sentenced in the Magistrates Court for 12 offences committed on 16 October 2019. These offences were: "unlicensed person possess firearm/ammunition" (two counts); "possession of stolen or unlawfully obtained property"; "possession of a contrivance known as a silencer"; "possessed a prohibited drug with intent to sell or supply (methylamphetamine)"; "possessed drug paraphernalia in or on which there was a prohibited drug or plant"; "possessed a prohibited drug" (two counts); "possessed a controlled weapon" (three counts); and "possess a prohibited drug (cannabis)".
51. The Applicant was sentenced to a total term of two months' cumulative imprisonment to be served on top of his sentence of 28 August 2020 for the 10 December 2019 Cancellation offences. This term was comprised of three concurrent sentences of two months' each for the offences of "possessed a prohibited drug with intent to sell or supply (methylamphetamine)" and "possession of stolen or unlawfully obtained property"; and one month for one of the "unlicensed person possess firearm/ammunition" offences.
52. These offences related to possession of ammunition and a silencer which the Magistrate found was "not possessed for any nefarious purpose"; possession of three controlled weapons, being a replica pistol, throwing knives, a baton and a rifle; possession of approximately 10 grams of cannabis, LSD, smoking implements and ephedrine hydrochloride; the possession of 1.7 grams of methylamphetamine with intent to sell or supply; and the possession of $22,580 in cash (G6/26-27; R2/145-149).
Upcoming District Court Trial and Trial Allocation in Magistrates Court
53. The Applicant has an upcoming trial by jury in the Perth District Court which has been listed from 3 August 2022 to 12 August 2022 for the charge of "manufacture a prohibited drug" committed on approximately 13 and 14 May 2019. He also has a trial allocation date listed in the Magistrates Court on 6 September 2022 for "damaging property" (R3). The Applicant has pled "not guilty" to these charges, and he has not otherwise made any admissions of guilt. The only information before me about these charges is contained in the listing details from the eCourts portal and a Statement of Material Facts prepared by Western Australia Police. Accordingly, the Applicant is entitled to the presumption of innocence and I have not included these charges as conduct for the purpose of this primary consideration (para 8.1.1 of Direction No 90). I have, however, mentioned these upcoming charges below in the section on the best interests of minor children, because they add to the difficulties in assessing the future care of the Applicant's minor daughters.
Assessing the nature and seriousness of the conduct
54. The offences the Applicant has been convicted of do not fall within the types of crimes or conduct described in Direction No 90 as being "very serious" (para 8.1.1(1)(a)) or "serious" (para 8.1.1(1)(b)). However, the conduct described in those sub-paras is not exhaustive, and the Tribunal has previously recognised that other types of offences can be categorised as "very serious" or "serious".
55. For example, the Tribunal has previously recognised the harmful effects of drugs on the community (see, for example, Senior Member Cameron in SCJD and Minister for Home Affairs [2018] AATA 4020 (SCJD) at [81]-[83]). These harms will also be discussed below with respect to para 8.1.2 of Direction No 90. The sentencing remarks for the Applicant's drug offences refer to these harms and to the seriousness of the Applicant's drug related offending.
56. Specifically, when sentencing the Applicant for the 12 offences committed on 16 October 2019, the sentencing Magistrate referred to the harms that drugs can cause to the community (G6/27):
General deterrence is an important sentencing consideration, one, because the harm drugs do to individuals and their health. Two, because of the profits that can be made from the unlawful dissemination of drugs. Three, because of the crimes that people can and do commit when under the influence of drugs in terms of violence and property crimes. To steal property, to get funds to purchase drugs.
That's not an exhaustive list of why drug dealing is considered so serious. ...
57. Further, when sentencing the Applicant on 28 August 2020, the sentencing Judge, Goetze DCJ, further detailed the serious nature of drug related offending due to the harms that drugs cause to the community. His Honour stated (G7/37-38):
Now, you know that drugs are a problem in our community. You've acknowledged that in your letter to me. The reason why the penalties are so high for drug matters, count 1, are because Parliament gets the message from the community that it is a serious problem, so Parliament sets the high penalty.
And the evidence of it being a problem in the community is the fact that you're here now. You might be the only person in today's list which is a straightforward drug matter, but on at least the first matter I dealt with this morning, drugs were responsible for a serious burglary. On the second matter this morning, there was a drug problem in a grievous bodily harm, and here you are, the third matter, which is purely drug-related.
I've been in sentencing this week, just about everything had at the core of the offending the use of illicit drugs. And it's not people who just use drugs who are affected, it's the innocent members of the community, the victims of the burglary and the grievous bodily harm this morning, they're innocent members of the community who suffered by reason of it. People commit offences to get cash or property that they can trade or sell to fund their drug habit. So innocent members of the community are affected, and that's why Parliament knows that it's a wide-spread scourge on our society and the community have told Parliament, make sure you lock these people up for a long time. It's as simple as that, really.
And if you take drugs long enough, it affects you health-wise. I am told that if you take methylamphetamine long enough, it impacts on your potency. Now, people lose their teeth, they have skin problems, all sorts of things occur, they can die. That then also impacts on their family and friends, so there is a widespread consequence for drug use.
58. This Tribunal has often regarded driving offences as being serious (see Senior Member Poljak in Kohli and Minister for Immigration and Border Protection [2017] AATA 1326 at [20]). The Applicant's driving and traffic offences are, however, less serious than many driving offences because, for example, they did not involve reckless or dangerous driving. He did, however, admit to driving under the influence of drugs, and although he was never charged, I regard that conduct as being very serious because impaired driving under the influence of drugs is a danger to other innocent road users.
59. The Applicant also drove on his L plates unsupervised with children in the car. He claimed that he was not an unskilled driver whilst driving with children in the car because he had a drivers' licence in New Zealand before coming to Australia, which he lost due to committing driving offences (transcript/47). The fact is that the Applicant lost his licence in the first place due to committing driving offences and so, I do not regard his explanation that he was not an unskilled driver to be satisfactory and I find this conduct to be of a moderate level of seriousness.
60. Paragraph 8.1.1 of Direction No 90 is not limited to "offending" (that is, offences an applicant has been convicted of). It also refers to "other conduct". It is therefore relevant for me to consider a prison incident that occurred on 17 February 2020 where the Applicant was involved in an assault on another prisoner whilst in the company of two other prisoners. One of the prisoners punched the victim in the nose which resulted in a bleeding nose, the Applicant "grabbed" the victim and threw him to the ground, and the other prisoner told the victim that he must not tell prison officers what happened (R2/59; 103). In his parole plan, the Applicant referred to this incident and wrote that "while i was provoked i handled the situation poorly and regret my actions" (G13/68). When asked about the incident at the hearing the Applicant's evidence was that he had known the victim outside of prison and that the victim had sent "rather rude photographs" to the Applicant's wife. The Applicant approached him about this in prison and, according to the Applicant, the victim, "decided to mouth off at me and one thing led to another, unfortunately" (transcript/20-21). The prison incident report states that the Applicant was forthcoming about his involvement in the incident which resulted in a formal charge against the Applicant. I find the Applicant's explanation of provocation to be unacceptable. I further find that the assault and intimidation of another prisoner in company is a serious incident. Applying para 8.1.1(1)(a)(i), as this assault was an incident of violence, it should be viewed very seriously.
61. With respect to the sentences imposed by the courts (para 8.1.1(1)(c) of Direction No 90), the Applicant received fines for the Driving/ traffic offences, which is indicative that the Magistrate did not regard them as serious offences.
62. However, the Applicant was sentenced to a total term of 30 months' imprisonment for the 10 December 2019 Cancellation offences. Relevantly, when sentencing the Applicant on 28 August 2020, Goetze DCJ made the following remarks which indicated that a term of imprisonment was appropriate due to the seriousness of the offending (G7/38):
Imprisonment is imposed only as a penalty of last resort. It's not imposed unless the protection of the community requires it, or the offence is sufficiently serious as to justify it. Now, it's properly conceded by [the Applicant's lawyer] that in your case imprisonment is the appropriate penalty, and that should be a term to be served immediately. Your offending is too serious to justify suspension.
63. The 10 December 2019 Drug offences were dealt with by way of a $2000 global fine which indicates that they were of a less serious nature.
64. Regarding the 16 October 2019 Drug and Weapons offences, the sentencing Magistrate imposed a two-month term of imprisonment and was satisfied that there needed to be some degree of cumulation, albeit a small one, to reflect the Applicant's overall offending. His Honour therefore imposed a total term of three months' imprisonment for the three offences outlined above, with the remaining offences being dealt with by way of fines (G6/29; R2/137-138). Whilst fines indicate that the offences were less serious in nature, the imposition of an additional two months' imprisonment by the Magistrate to be added to the Applicant's current sentence indicated the offences (which included possessing 1.7 grams of methylamphetamine; and the possession of $22,580 in cash) were too serious to be treated concurrently with the 30-month sentence the Applicant was already serving.
65. I now turn to the frequency of the Applicant's offending, and whether there is any trend of increasing seriousness (para 8.1.1(1)(d) of Direction No 90). The Applicant committed two driving/ traffic offences in 2014 and two in 2016 but has not committed any further driving/ traffic offences since. Therefore, they are not frequent, and have not increased in seriousness.
66. He then committed 12 offences on 16 October 2019 and seven offences on 10 December 2019. This is a relatively short period of offending, although there were 19 offences committed in this short period. There is a slight trend of increasing seriousness because the Applicant was in possession of 10.09 grams of methylamphetamine and $24,395 in cash on 10 December 2019 for which he received a total term of 30 months' imprisonment. These offences were more serious than his other, earlier offences.
67. I consider that there is some cumulative effect of repeat offending given the number of offences committed, albeit on several occasions, his three court attendances and his sentences of imprisonment (para 8.1.1(1)(e) of Direction No 90).
68. There is no evidence before me to suggest that the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending, such as on incoming passenger cards (para 8.1.1(1)(f) of Direction No 90).
69. Paragraph 8.1.1(1)(g) of Direction No 90, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. He has not received any warnings of this nature.
70. I find the nature and seriousness of the Applicant's Driving/ traffic offences to be a low to moderate degree of seriousness, and his conduct of driving under the influence of drugs to be serious. His involvement in an assault against another prisoner was very serious. The Applicant's 10 December 2019 Cancellation offences, which are drug related, are serious, as indicated in the sentencing remarks and by the 30-month term of imprisonment. So are the possession of the 1.7 grams of methylamphetamine and cash, which were part of the 16 October 2019 Drug and Weapons offences. The Applicant's other drug and weapons offences were less serious due to the quantities involved, and as indicated by the sentencing remarks and fines imposed, rather than sentences of imprisonment. However, collectively, they are numerous, and the drug offences are part of a category of offending that, as identified by Goetze DCJ, causes harm to society. I would therefore characterise them as collectively being serious. This is evident from the sentencing remarks which refer to the seriousness of the offending and to the harms that drug related offending causes to the community. I find that the Applicant's offending ranges from moderate to serious, and that on balance, para 8.1.1 of Direction No 90, the nature and seriousness of the conduct, weighs strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 90)
71. Paragraph 8.1.2(1) of Direction No 90 provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
72. Paragraph 8.1.2(2) of Direction No 90 provides, in part, in relation to assessing risk:
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
- information and evidence on the risk of the noncitizen re-offending; and
- evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of the harm (para 8.1.2(2)(a) of Direction No 90)
73. Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 90).
74. The Applicant's offending primarily consists of drug possession offences, including possessing methylamphetamine with intent to sell or supply, and other offences that were related to his drug use including possessing stolen property and weapons possession offences. The dangers associated with methylamphetamine (also known as "ice") use were outlined in the Commonwealth of Australia, Department of the Prime Minister and Cabinet, Final Report of the National Ice Taskforce, 2015 (Final Report) at iii:
Unlike cannabis and 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.
75. The Final Report further outlined how uniquely harmful methylamphetamine is to the user and to society, at 5:
In the majority of submissions and consultations, the Taskforce heard about the uniquely harmful nature of ice, that even irregular use has a high risk of serious harms, and that regular and dependent use can seriously damage the user as well as their friends, family and community. Since 2009, there has been a significant increase in the number of harms caused by methamphetamine: more dependent users, more deaths and more costs to the community.
76. Regarding drug offences more generally, at above paras [54]-[55], I outlined the comments of the sentencing Magistrate and the sentencing Judge, Goetze DCJ. Both referred to the harm caused to individuals and their health from drug use, and the crimes perpetrated against innocent members of the community, including violent crimes, and property offences committed by persons to get money to purchase drugs.
77. Similarly, the harms of trafficking in drugs were recognised in SCJD, which I have also referred to above, where Senior Member Cameron stated at [81]-[83]:
The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person's drug dependency. There is a massive toll on the nation's mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.
In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.
There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.
78. In summary, purchasing, possessing, and selling drugs supports the illicit drug trade in the Australian community. The prevalence of drugs causes harm to the community on many levels. These harms include the prevalence of drug related crimes, including violence and theft, increases in property and health insurance premiums, as well as mental and other health issues for drug users, and the negative impact that this can have on their families. Should the Applicant commit more drug offences, the harm that could result could be very serious.
79. Additionally, driving offences can potentially be serious and can result in physical and psychological injuries to innocent road users. Although the Applicant does not appear to be a dangerous or negligent driver, licensing rules and rules concerning learner drivers exist to ensure that persons driving cars are appropriately qualified and safe to do so. Contraventions of laws that ensure road safety and the protection of innocent road users can have serious consequences.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 90)
80. Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (para 8.1.2(2)(b)(i) and sub-para (ii) of Direction No 90).
81. With respect to the Applicant's criminal history, he committed prior criminal and driving/ traffic offences in New Zealand between 2001 and 2008. I note that in his Honour's sentencing remarks on 28 August 2020, Goetze DCJ referred to the Applicant's "poor history with the compliance of community based orders in New Zealand" (G7/35). This poor history of compliance is of concern because it suggests a possibility of future non-compliance.
82. However, the Applicant does not have a lengthy Australian criminal history when one considers the fact that all the Applicant's criminal offences in Australia were committed in a relatively short period, that is, on 16 October 2019 and 10 December 2019. His offending during that period was primarily attributable to his heavy drug addiction. Also, as I noted above, he committed the 10 December 2019 offences whilst he was on bail for the 16 October 2019 Drug and Weapons offences. If the Applicant can abstain from drug use it is likely to assist him not to reoffend.
83. When sentencing the Applicant on 28 August 2020, Goetze DCJ stated (G7/35):
You are described in the [pre-sentence] report [dated 30 June 2020] as being pre-contemplative in respect of addressing your drug issues. That's indicated by your hesitation to commit to a long-term custodial setting. You have unmet treatment needs regarding your drug addiction, consequential thinking and decision-making deficits, as well as your poor coping skills. You need substance abuse counselling, psychological counselling, which can address your poor emotional regulation, coping skills and relationship issues.
84. However, there is no formal psychological risk assessment before me. Further, when the Applicant was assessed by prison treatment assessors in September 2020, he was assessed as being a low risk of reoffending and was therefore not further assessed for criminogenic programs (R2/45). His individual management plan also noted that addictions offending was not required due to low risk/need (G18/98-99; see also R2/117). This is somewhat surprising given these sentencing remarks, the direct relationship between the Applicant's drug addiction and offending, and the significance of his drug addiction at the time of his offending.
85. The Applicant's evidence was that he first tried methylamphetamine when he was 14 years old, and that between the ages of 14 and 18 he would use it "a couple of times a month" (transcript/22). He estimated that from the age of 18, he would use it twice a week, that he abstained between the ages of 24 to 26 because he had a good job. From 26 to 28, he used methylamphetamine nearly every day, and then from age 28 to approximately 33 to 35 years of age he managed to abstain from drugs. He started using again at the beginning of 2019 and by March 2019 he was using drugs every day. From March 2019, he was using methamphetamine daily, LSD twice a week and MDMA twice a week (transcript/24). The Applicant was using approximately three to three and a half grams of methylamphetamine a day during this period (G6/28; G7/35).
86. To address his addiction issues, the Applicant self-referred and completed the Solid Steps alcohol and other drugs recovery program at Casuarina Prison on 20 June 2021 (G17/84, 91). This is a voluntary, but intensive program that runs seven days a week over 36 weeks. The participant report for the Applicant states that the program aims to reduce the participants' risk of re-offending related to alcohol and other drug use. The Applicant's participation report was positive and stated that he engaged with the program, including becoming a prison peer support person to help new participants, and being a role model within the program. The report states that the Applicant is focussed on rebuilding relationships with his daughters, who were adversely affected due to his drug use. It also identifies that the Applicant is continuing to process feelings of shame, guilt and remorse for his past drug use and how it impacted his family, and that he is focussed on regaining their respect and trust. It also stated, however, that he "appears to be in good control of his emotional responses" (R2/109-113). The report summary stated that the Applicant was "insightful, reflective and confident in his interactions within the program" and that (R2/114):
When issues were brought to his attention, he appeared to spend time processing strategies that would develop pro-social behaviours. This is indicated by [the Applicant] changing his attitude toward his future and AOD [alcohol and other drugs] behaviours to be focussed on rebuilding his relationships with his children and loved ones and not being associated with criminality.
87. The report recommended that the Applicant engage in further counselling and to continue with his healthy living regime, including an exercise regime (R2/114). Whilst the report was positive overall, there was no assessment by treatment facilitators regarding the likelihood of the Applicant abstaining from drug use, nor any assessment of the likelihood of reoffending being reduced, and to what extent, because of the completion of the program.
88. The Applicant stated that he has had negative drug tests in prison and that he has abstained from drugs in prison which he says are readily available there. In fact, the Applicant claimed that "there are more drugs in prison than there are out of prison" (transcript/9, 48). The Respondent argued that prison is a controlled environment, and that the Applicant's abstinence has not been tested in the community. I am inclined to agree with the Respondent. Prison is a controlled environment and therefore I do not accept that drugs are more readily available in prison. I do, however, acknowledge that a period of abstinence in prison may assist to break the cycle of the Applicant's drug use and may assist him to remain abstinent in the community.
89. The Applicant has also produced a certificate of participation which states he has successfully completed the "ReSet Introduction to Parenting One Day Course" in 2020 (G17/94). He also produced a certificate stating that he "actively participated in a Career Development workshop" on 3 August 2020 which was run by the Outcare organisation (G17/95). The extent of any counselling undertaken by the Applicant is unclear. At the hearing, the Applicant stated that he had an eight week follow up after the Solid Steps program and that he had weekly phone calls with a "keyworker" (transcript/28). He said that his plan was to engage with his keyworker once released to organise for him to attend one on one counselling as well as a group meeting in the community (transcript/28; 47). He also stated that he had attended Narcotics Anonymous meetings as part of the Solid Steps program (transcript/40). In the Applicant's parole plan, he also mentions having undertaken Narcotics Anonymous, "Past, Drug and Alcohol" as well as "Reset, Drug and Alcohol" courses (G13/68-70). Unfortunately, there is no other corroborating evidence of completion of these other voluntary courses, including in the participant report for the Solid Steps program, nor in any prison reports. There is, however, reference in the Applicant's prison notes to his completing a two-day "Wungening Drug and Alcohol Program" on 11 and 18 June 2020 (R2/54). There is also a note dated 17 December 2019 which refers to the Applicant being interviewed for an alcohol and other drugs group with the notation "agreed to AOD Group inclusion", but there are no further notes about any attendance. The sentencing remarks of 1 September 2020 state, "you clearly do have prospects of rehabilitation, and you have undertaken some courses whilst in custody" (G6/28). Further, when sentencing the Applicant on 28 August 2020, Goetze DCJ referred to the Applicant (G7/36):
undertaking a lot of rehabilitation work in prison. I've got certificates from those courses that have been provided. I won't go through them all, they're in a bundle.
90. I am therefore willing to accept that the Applicant has done those courses, but that he has minimal, if any counselling outside of the Solid Steps program. The Applicant's completion of voluntary courses is positive and shows a willingness to address his drug use which is directly related to his offending.
91. Of concern, however, is the Applicant's involvement in an assault on another prisoner on 17 February 2020, which I described above. This incident shows a lack of consequential thinking and adding to that concern is that there is no evidence of previous violence by the Applicant. This is, however, the only prison charge concerning the Applicant and no other incidents of violence or threatened violence have occurred since that time.
92. There were other prison incidents the Applicant was asked about at the hearing. On 31 December 2020, prison notes state that the Applicant became "aggressive and argumentative" when asked to comply with the prison dress code, and on 11 March 2021, the Applicant "became abusive" to a prison officer after an e-visit. The Applicant agreed that he was argumentative because he felt singled out but disagreed that he was aggressive. He stated that he became upset because his e-visit was cancelled beforehand (transcript/21). However, I place limited weight on these two incidents which are counterbalanced by the Applicant's good prison behaviour. For example, a note dated 21 May 2020 records the Applicant's professional work ethic. Another note dated 10 August 2020 states the Applicant has been working to an excellent standard (R2/53-54). An individual management plan from April 2021 notes the incident of 17 February 2020 which resulted in a prison charge, but nevertheless stated that the Applicant "is a self starter who carries out his duties to a high standard with minimal supervision" and that he "is polite, well mannered and mixes well with staff and other prisoners" (R2/77). The Applicant also undertook a peer support role as part of his completion of the Solid Steps program.
You are working on a parole plan which shows forward thinking, which is also mitigatory. This includes dealing with anger management, your cognitive skills and, if necessary, rehabilitation from drugs and alcohol.
94. Although the Applicant was eligible to be considered for parole on 9 April 2021, he denied his own parole in March 2021 because he did not want to go into immigration detention, preferring to stay in prison, because he got to work in prison every day (R2/62; transcript/18). If he is successful in having the Cancellation Decision revoked, he stated that he would not need to reapply for parole because his sentence maximum expires in August 2022. He said that instead, he would apply for bail with respect to the upcoming charges he is being tried for in the Perth District Court and the Magistrates Court in August and September this year (transcript/17-18). I agree that the preparation of a parole plan, especially in those circumstances, demonstrates that the Applicant has a plan in place to help him to rehabilitate and reintegrate into the community. Also, if he is released on bail, he is likely to be randomly drug tested which will help him abstain from drug use in the community. However, whether this will happen is uncertain.
95. Goetze DCJ accepted that the Applicant was remorseful and that he had a strong motivation to make change (G7/36). The Magistrate also described the Applicant as having "deep regret and remorse at [his] circumstances" (G6/27). The Applicant's "shame, guilt and remorse" was also referred to several times in the Solid Steps participant report, as well as his appreciation for the impact of his offending on his daughters. Expressing remorse can be indicative that an applicant accepts responsibility for his or her offending (JFSQ and Minister for Home Affairs [2019] AATA 616 at [65] cited in Subasinghe and Minister for Home Affairs [2019] AATA 751), which may in turn be a factor that lowers the likelihood of reoffending. I accept that the Applicant is genuinely ashamed and remorseful for his offending and that he appreciates the impact of his offending on his daughters. This may provide the Applicant with motivation to abstain from drug use and not to reoffend.
96. As I mentioned above, the Applicant has a good employment history in hospitality working as a chef. I also note his evidence that he was able to cease drug use between the ages of approximately 24 to 26 because he had a "very good job" (transcript/22). The Applicant's evidence was that he had an offer of employment from a former employer, DC (transcript/29). There is an undated letter in the G-documents from DC stating that he would reemploy the Applicant if he had the opportunity to (G16/77). However, the letter states that DC lost contact with the Applicant for a period and does not mention any knowledge of the Applicant's offending. I accept that the Applicant's work experience would assist him to find employment, which would be a protective factor if he was released into the community.
97. Indeed, there is minimal evidence of support from friends and family in the community. I note the Applicant's evidence that he is unable to speak with his wife at present due to her bail conditions, and that she is facing serious drug charges herself. In addition to the letter from DC, there is a letter from another friend, LC, dated 1 February 2021. LC states that he would have no hesitation helping the Applicant in any way he can, but the letter does not mention any of the Applicant's offending, nor his imprisonment (G16/79). At the hearing, the Applicant referred to family friends, TO and SA, who had helped with the children in the past, although TO now has some health issues. The Applicant also referred to another friend, MC, who was assisting the children to have an upcoming Skype call with him (transcript/32). There are no references from TO, SA or MC before me, and on the available evidence it appears that the Applicant's support in the Australian community is somewhat limited. I also note that almost all the Applicant's family support, including his mother and other immediate family members, reside in New Zealand.
98. There are factors that suggest there is a likelihood of the Applicant committing further drug related offences and possibly traffic/ driving offences. These factors include his history of poor compliance, his significant methylamphetamine addiction, limited support from family and friends in the Australian community, and the Applicant's involvement in an assault on another prisoner on 17 February 2020. The Applicant has only completed voluntary treatment programs in prison, his likelihood of reoffending has not been formally assessed following the completion of these programs, and his abstinence from drugs has not been tested outside the controlled environment of prison.
99. There are, however, factors that suggest the Applicant is a low likelihood of reoffending. These include:
100. However, my assessment that the Applicant is a low likelihood of reoffending is dependent on the Applicant's ability to abstain from drug use. If the Applicant recommences his drug use, I assess the likelihood of his reoffending as being high.
101. I therefore find that para 8.1.2 of Direction No 90, being risk to the Australian community should the Applicant commit further offences, weighs moderately against the revocation of the Cancellation Decision.
102. I have found that para 8.1.1 of Direction No 90 weighed strongly, and para 8.1.2 weighed moderately against revocation of the Cancellation Decision. Therefore, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs moderately to strongly against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 90)
103. Paragraph 8.2 of Direction No 90 requires decision-makers to have regard to family violence committed by the non-citizen. The Applicant has not been convicted of family violence offences, nor is there any information or evidence from independent and authoritative sources indicating that he has been involved in the perpetration of family violence (para 8.2(2) of Direction No 90). Therefore, this primary consideration is not relevant.
The best interests of minor children in Australia affected by the decision (paras 8(3) and 8.3 of Direction No 90)
104. Paragraph 8(3) of Direction No 90 states that in making a decision under s 501CA(4), "the best interests of minor children in Australia" is a primary consideration.
105. Direction No 90 states that decision-makers must determine whether the decision under review is, or is not, in the interests of a child affected by the decision. The first three paras of 8.3 provide:
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, 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.
106. Paragraph 8.3(4) of Direction No 90 sets out the factors that the decision-maker must consider:
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
107. The Applicant has three biological daughters with his wife (from whom he is separated). T is 13 years old; A is eight years old; and S is five years old (G10/52). The eldest two children are New Zealand citizens, and the youngest was born in Australia, and is likely to have the same citizenship as her parents (transcript/16). I have proceeded on the basis that the children have an indefinite right to stay in Australia, however, the children would also have a corresponding right to reside indefinitely in New Zealand if they relocated there with one or both parents.
108. It is the Applicant's view, however, that the interests of the children are best served if they can remain in Australia and that they will experience hardship if he is deported (A1). At the hearing, during cross-examination, he stated (transcript/16):
COUNSEL: I understand that you want them to continue to reside here, regardless of what the outcome of this proceeding is?
APPLICANT: Yes. Their whole - their life is here. They've known nothing but living in Perth. Their friends are here; their schools are here; their sport, their society - it's what they know. So, to uproot them would be unfair on them, and to move them to a country that they obviously don't know, but also into a situation where I don't know what's going to be happening either, that would be unfair on both of us.
109. This view is supported by an email from the Applicant's sister, JM, dated 21 January 2022 in which she stated that "his daughters would benefit greatly from having their dad be their caregiver going forward" and "I truly believe it is in everyone's best interest for [the Applicant] to stay in Australia and provide care and a home for his daughters". In a handwritten letter the Applicant's father, SM, stated that the Applicant "has always been a massive provider and amazing dad to his 3 girls ... and its important that he can carry on having such a close relationship with them, in Australia" (A1). In an undated email from the Applicant's mother, JC, she states, "it's in [the Applicant's daughters'] best interests for their father to remain in Australia to bring them up in the surroundings that only they know" (G15/76).
110. However, considering the best interests of the Applicant's minor daughters is a somewhat difficult exercise because the outcome of future circumstances that may impact the children's care are currently unknown. These include the Applicant and his wife both having upcoming trials by jury in the Perth District Court in August 2022, as well as upcoming hearings in the Magistrates Court (R3; R4). Depending on the outcome of those proceedings, the Applicant may again face the cancellation of his Visa, as may his wife (who is also a citizen of New Zealand). Alternately, the Applicant and/or his wife may be acquitted. There is also uncertainty around who will provide care for the children if one or both parents are returned to New Zealand, or whether the children would go into foster care. There is no evidence from the Applicant's wife concerning her plans for the future, or her views regarding the children's best interests or their future care. There is no evidence from the persons who are proposed to help care for the children if both the Applicant and his wife are in prison, or if the Applicant is deported and his wife is sentenced to a term of imprisonment. Assessing whether non-revocation is or is not in the best interests of each of the Applicant's daughters against these various future possibilities is, to use the words of Member Burford in FTDN and Minister for Home Affairs [2019] AATA 1301 at [150], "a heavily speculative exercise".
111. Much of the evidence before me concerns the children collectively and so I will now outline this evidence.
112. The children are living in the family home, which is mortgaged. The Applicant's evidence at the hearing was that he released money from his superannuation and borrowed money from his mother-in-law to assist to pay the mortgage while he is in prison. There is no information before me as to whether the Applicant's wife works or has any income, or her contributions, if any, to the mortgage. There is also no information about whether the Applicant's wife would be able to rent a property elsewhere if the family home could not be retained.
113. In his personal circumstances form the Applicant described his relationship with his daughters as follows (G10/53):
Currently due to being incarcerated ... i talk to my children each Morning before School and twice more in the afternoon/Evening, I do not have them visit me as i believe this is not an environment for Children. Prior to my incarceration i was involved in all daily aspects of my childrens lives from School duties to Elite gymnastics with my eldest Daughter. I believe that i have a good loving relationship with all 3 of my daughters but also aware how hard my incarceration has been on them during this process with me not being there for them every day.
I played a major role in my daughters lives and intend to do so if released back into my community.
(As original.)
114. The children have been separated from their father since his incarceration on 10 December 2019. However, at the hearing the Applicant stated that he speaks to his daughters every day. He said that it became difficult to speak to them when they were getting ready for school in the morning, and so he now speaks to them after school and in the evenings. He repeated that he did not want the children visiting him in prison because he thought it was not a good environment for them. He had a Skype visit booked for the weekend after the hearing with the children because he had not seen them for so long and was concerned that he would not see them for a while longer. He also said that the children send him mail and pictures in prison (transcript/30-31).
115. In his personal circumstances form the Applicant described the potential impact on his children if the Cancellation Decision was not revoked (G10/53):
My childrens lives have been Severely disrupted due to my choices that lead to my incarceration. They feel i have abandoned them and let them down. Due to the financial Strain because of my incarceration My eldest has had to be pulled from Elite gymnastics which she has dedicated 8 Years of her life to, and all 3 of my children have had to miss out on opportunities because of my actions. I believe if i receive a negative decision i will miss out on the ability to reconect with my children and to be part of thier development at an important stage in thier lives. I feel this will have a Negative impact on their Mental Wellbeing Now and into thier future.
(As original.)
116. The Applicant moved out of the family home approximately six months prior to his incarceration. In a letter to the Revocations Section of the Department he stated (G14/75):
My addiction got out of control and lead me to leave my job and move out of the family home which then put pressure on my wife and my 3 children, i became absent in my duties as a husband and father as my addiction took hold of me.
(As original.)
117. At the hearing, the Applicant stated (transcript/31):
My kids have never witnessed any drug use. That was one of the major reasons why I removed myself from the family home, is because I didn't want my children to see me like this. I didn't want the chance of them finding something. Look, it's the last thing I wanted for anybody, but my addiction had control of me, and the only smart thing I did during that period was remove myself from the family home.
118. However, at the hearing the Applicant stated that even after he moved out of the family home, he still dropped the children off at school in the morning and that he "was still very much part of their daily life" (transcript/13). Additionally, as I have mentioned above, the Applicant admitted to being under the influence of drugs when driving to the family home, and when walking the children to school (transcript/24). I infer from these two statements that the extent of the Applicant's involvement in the children's care was dropping the children off at school each morning. Nevertheless, the children had daily contact with the Applicant.
119. The children are currently cared for by their mother who is on bail awaiting a trial in the Perth District Court. A trial by jury has been listed from 2 August 2022 to 5 August 2022 for offences including "offer to sell/supply a prohibited drug to another (methylamphetamine)", "possession of stolen or unlawfully obtained property" and "possession of a prohibited drug with intent to sell or supply (methylamphetamine)". She also has a remand hearing in the Magistrates Court on 16 August 2022 for "possess a prohibited drug (cannabis)", "possess a prohibited drug (methylamphetamine)" and "possessed drug paraphernalia in or on which there was a prohibited drug or plant" (R4). As I mentioned above, to complicate matters, as well as potentially facing a term of imprisonment if she is found guilty of an offence or offences, the Applicant's wife's visa may also be cancelled depending on her court outcomes.
120. The Applicant's evidence was that depending on the outcome of this application, his mother may travel back to Australia to assist to care for the children (transcript/11). The Applicant's mother previously came to Australia for a period of 16 months to assist with the care of the children. She returned to New Zealand 18 months ago and was unable to return to Australia due to COVID-19 travel restrictions. There are, however, two statements before me from the Applicant's mother that do not mention the possibility of her returning to Australia to care for them. The most recent statement is an email from the Applicant's mother dated 6 February 2022 where she referred to the Applicant's wife's upcoming trial and possible incarceration. She then referred to the potential for the children to end up in foster care, stating, "I certainly don't want them to end up in the system, they need to be with their Dad ... not with strangers" (A1).
121. The Applicant further stated that if he is deported and the children's mother goes to prison, then his wife's sister "would more than likely come over here and look after them" until he and his wife decide where the children should live. However, no definite plans appear to have been made with the Applicant's wife's sister and there is no statement from her before me. Indeed, the Applicant described this plan as a "stopgap measure until something concrete could be put into place" (transcript/16-17).
122. According to the Applicant, he is confident that his wife provides good care for the children. His evidence was that the children are loved, fed, and cared for and that they attend school every day. His wife is also subject to bail conditions and he believes that she is drug tested regularly. He also mentioned several friends who check on the Applicant's wife and children, and that one of these friends, MC, is collecting the children so they can have the Skype visit with him, which has been mentioned above (transcript/31-32).
123. I now turn to the factors in 8.3(4) of Direction No 90. In accordance with para 8.3(3), the children have been given individual consideration where their interests differ.
124. The Applicant's 13-year-old daughter, T, was undertaking gymnastics training at a high level but could not continue when the Applicant went to prison because the Applicant and his wife could not afford to pay the fees (email from JC in A1). The Applicant's evidence was that "my actions drove a wedge between me and my eldest when I first got locked up, because she has been training twice a day, six days a week, for two years, and she was extremely close to being pitched for the next Olympic squad, and because of my actions that had to be taken away from her" (transcript/31). Notwithstanding these tensions, I accept that the relationship is a close parental relationship. In this regard I note an email from the Applicant's mother, stating that, "[w]hen he had his 1st daughter he was a stay at home dad and he developed an unbreakable bond with her" (G15/76).
125. With respect to all the children: T, A and S, there has been a period of absence since December 2019 when the Applicant went to prison, but he has maintained daily telephone contact with his children, and they write to him and send him pictures. Overall, I find that the relationship between the Applicant and his daughters is a close parental relationship and weighs in favour of the revocation of the Cancellation Decision (para 8.3(4)(a) of Direction No 90).
126. I am not aware of any Court orders relating to parental care and access arrangements for the Applicant's daughters. T is only 13 years of age and so there are five years until she turns 18. These are formative years, and I find that she would benefit from having her father in her life during this time. A is eight years old and so there are another 10 years until she turns 18. S is five years old and so there are another 13 years until she turns 18. For these youngest two children, there is a substantial amount of time until they turn 18. The Applicant clearly loves his daughters. He feels that he has let them down and he wants to be present in their upbringing. If he can abstain from drugs, and if he does not reoffend, he is likely to be a positive role model to his children, including T, in the future (para 8.3(4)(b) of Direction No 90).
127. The Applicant's prior conduct has not had a direct negative impact on T. However, as I have mentioned, it has had an indirect impact in that she was required to give up her gymnastics training when he went to prison. There is no evidence that his conduct has had a negative impact on A and S. If the Applicant is permitted to stay in the community and was to resume drug use, and/or was to commit further offences, any subsequent separation from the Applicant due to prison or deportation is likely to have a negative impact on his daughters (para 8.3(4)(c) of Direction No 90).
128. I find that separation from their biological father would have a detrimental effect on T, A and S if the Applicant was returned to New Zealand and if they were to remain in Australia. There is uncertainty about whether their mother will be able to continue to care for them, however the current plan for the children is that they should stay in Australia. If the Applicant is returned to New Zealand and the children stay in Australia, I find that maintaining contact in other ways, such as via telephone, the internet or videoconference, would be an unsatisfactory substitute for having their father physically present (para 8.3(4)(d) of Direction No 90).
129. The children's mother currently fulfils a parental role in relation to them. As noted above, the Applicant stated that, despite being charged with drug offences, she provides good care for the children, and that she has some assistance with their care from friends, and possibly family. However, there is uncertainty as to whether she will be able to continue to do so depending on the outcome of her upcoming jury trial. Consequently, despite the Applicant also facing a further District Court trial himself, a successful outcome for the Applicant with respect to this application would be a step towards the children being able to stay in Australia with at least one, and possibly two, parents (para 8.3(4)(e) of Direction No 90).
130. There is no information before me about any of the Applicant's daughters' views (para 8.3(4)(f) of Direction No 90).
131. There is no evidence that the Applicant's daughters have been or are at risk of being abused or neglected by the Applicant (para 8.3(4)(g) of Direction No 90). I do note, however, that the Applicant was under the influence of drugs when he walked the children to school. I also note his admission that he drove with them in the car without an instructor present when on his L plates. There is no evidence that the Applicant's daughters have suffered any physical or emotional trauma arising from the Applicant's conduct. However, T may have suffered the emotional detriment of having to discontinue her high-level gymnastics training. The children have also suffered the detriment of being separated from the Applicant while he has been in prison (para 8.3(4)(h) of Direction No 90). I note that the Applicant completed a one-day parenting course in 2020 whilst in prison (G17/94). The Applicant clearly loves his children and is worried for their welfare. He is likely to be a good role model to his daughters in the future if he can abstain from drug use.
132. I also note, in weighing this consideration, that although the Applicant's evidence was that he wanted his daughters to stay in Australia, the Applicant's daughters would be able to return to New Zealand with him. I note in saying this, that his wife, from whom he is separated, is a New Zealand citizen whose future visa status and intentions are unclear. She may be deported to New Zealand depending on the outcome of her jury trial and any sentencing, or she would be able to voluntarily return there. In circumstances where both parents were returned to New Zealand, it would likely be in the children's best interests to return there with their parents and extended family, including their grandmother who has cared for them in the past. They are also of relatively young ages which would make it easier for them to re-settle in New Zealand. The best-case scenario for the Applicant's daughters is to have both parents physically present in their lives, and not to be separated from one or both of their parents. Despite the future uncertainties that I have identified, I find that revocation of the Cancellation Decision would provide an opportunity for this to eventuate.
133. After considering and weighing the factors in paras 8.3(4)(a) to (h) of Direction No 90, and notwithstanding the future uncertainties I have identified, I find that revocation of the Cancellation Decision is in the best interests of T, A and S provided that the Applicant can abstain from drug use. On balance, I find that that their interests weigh moderately in favour of the revocation of the Cancellation Decision.
Expectations of the Australian community (paras 8(4) and 8.4 of Direction No 90)
135. These expectations are set out in para 8.4 of Direction No 90, which provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
136. Thus, I must give effect to the "norm" stipulated in para 8.4(1) of Direction No 90, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
137. As is evident from the reference to the "norm" in para 8.4(1) of Direction No 90, I am being told unequivocally what the community's expectations are. Further, para 8.4(4) of Direction No 90 confirms more explicitly that the Australian community's expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government's views about community expectations without independently assessing them.
138. In this regard, I agree with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143, which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman). In Wightman, Deputy President Boyle stated, at [85]-[86]:
... Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195. It was the Court's view that it is not for a decision-maker to make his or her own personal assessment of what the 'expectations' of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed - they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196. It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a 'norm', which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
139. Further detail about the Australian community's expectations with respect to certain types of conduct, is given in para 8.4(2) of Direction No 90. That paragraph states that the Australian community expects that the Australian government should cancel a non-citizen's visa if they raise serious character concerns through specific conduct listed in sub-paras 8.4(2)(a)-(f), which includes acts of family violence, and crimes against women of a violent nature. The Applicant has not committed any of the types of conduct listed in those sub-paras.
140. Paragraph 8.4(3) of Direction No 90 further confirms that the Australian community's expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Thus, although I found above that the Applicant is a low risk of reoffending if he can abstain from drug use, the community's expectations as stated apply regardless.
141. Above, I found that the Applicant's criminal offending ranged from moderate to serious. I characterised the 10 December 2019 Cancellation offences as being serious, as well as the possession of the 1.7 grams of methylamphetamine and cash, which were part of the 16 October 2019 Drug and Weapons offences. This offending is serious conduct in breach of the expectations of the Australian community that non-citizens will obey Australian laws while in Australia. Consequently, the expectation of the Australian community would be that the Applicant's Visa should remain cancelled (para 8.4(1) of Direction No 90).
142. I am also guided by the principle in 5.2(4) of Direction No 90. I note that the Applicant has resided in Australia since June 2012, being less than ten years, having arrived as an adult. He has therefore participated in the community for a relatively short period of time. Australia would have a lower level of tolerance for the Applicant's conduct than for a noncitizen who had lived in the Australian community for most of their life, or from a very young age.
143. Accordingly, I find that para 8.4 of Direction No 90, being the expectations of the Australian community, weighs strongly against the revocation of the Cancellation Decision.
Other considerations (para 9(1) of Direction No 90)
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
- strength, nature and duration of ties to Australia;
- impact on Australian business interests
International non-refoulement obligations (paras 9(1)(a) and 9.1 of Direction No 90)
145. I am required to consider whether Australia's international non-refoulement obligations arise on any of the submissions, material or evidence before me (para 9.1 of Direction No 90). They do not.
146. Consequently, this other consideration is not relevant.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 90)
147. Paragraph 9.2(1) of Direction No 90 provides:
(1) Decision-makers must consider 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:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
148. The Applicant is 38 years of age. There are references in the materials before me to the Applicant suffering from depression, but no independent evidence of any formal diagnosis. In the Applicant's personal circumstances form he crossed the box marked "no" in response to the question, "do you have any diagnosed medical or psychological conditions?" (G10/59). At the hearing, the Applicant said that he was suffering from stress which contributed to his drug use and to his offending in 2019 (transcript/19). The Applicant further stated that in 2019, he went to his general practitioner once a fortnight for eight weeks for his depression. He stated that he was given some breathing exercises to do, but that he did not take any medication (transcript/26). At the hearing the Applicant confirmed that he was taking medication for hereditary high blood pressure and some medication to help him "slow down [his] thinking" as he was "struggling to sleep properly". He confirmed that he was otherwise in good physical health (transcript/33).
149. New Zealand is not an unfamiliar country for the Applicant. He has resided in Australia since 2012, having arrived as a 28-year-old adult. He has visited New Zealand on five occasions since that time (G19/103; transcript/10). New Zealand is broadly comparable to Australia and there would not be any language or substantial cultural barriers that would constitute an impediment to the Applicant returning to New Zealand.
150. At the hearing, the Applicant described the following concerns about returning to New Zealand (transcript/33-34; see also G10/60):
TRIBUNAL: And if you did have to go back to New Zealand, what are your main concerns about going back there?
APPLICANT: Yes. Look, my biggest concern - look, and my (indistinct words). I mean, I own my own house here, which obviously comes with the obligations - the personal loans, the mortgage, the credit cards, the rates, the power and the gas. That's still all in my name. I strongly believe if I get sent back that's going to be an overwhelming financial burden while I'm trying to rebuild my life back in New Zealand where I won't have a job, I won't have a house, I won't have a car, I won't have any of my stuff, while I still have like financial obligations in Australia to deal with, you know? So that's going to be one really hard thing, that's for sure.
151. The Applicant confirmed that he still had a mortgage on the house under which he owed approximately $390,000 and that he had taken money out of his superannuation and had borrowed $20,000 from his mother-in-law to continue to pay the mortgage. The Applicant estimated that he would have approximately $80,000 equity in the house (transcript/34). His wife (from whom he is separated) and children are currently living in the house. As mentioned above, there is some uncertainty regarding the Applicant's wife who is facing a substantial amount of drug charges herself, with a trial by jury listed in the Perth District Court in August 2022 and a remand court hearing listed in the Magistrates Court on 16 August 2022 (R4). In short, it is unclear whether the Applicant may be able to sell the house in the future to access any equity or whether the house will need to be retained so his wife and/or children can reside there. Given this uncertainty, I have proceeded on the basis that the Applicant will not sell his house, and that he will need to maintain his financial commitments in Australia if he is returned to New Zealand. He may therefore experience some financial hardship and stress establishing himself in New Zealand whilst meeting his financial obligations in Australia until he is able to obtain employment in New Zealand.
152. The Applicant expressed concerns about whether he may be able to find employment if he is returned to New Zealand due to the impact of COVID-19 and concerns about the New Zealand economy (transcript/35). However, the Applicant has substantial work experience in hospitality, working as a chef. These include positions as an executive chef, head chef and catering manager. He has also done "multiple short courses related to mining trainer and assessor - hospitality" (G10/58). This experience and his qualifications are likely to assist him to find work and to establish himself if he is returned to New Zealand.
153. Further, the Applicant stated that if he were removed, he would be returned to New Zealand with only the "clothes on [his] back", and that he would not be in a financial position to have his personal belongings and work tools packed up and sent to him in New Zealand (transcript/35). There is no evidence before me to suggest that this would be the case. I also observe that the Applicant arranged to pay his mortgage whilst he was in prison and was able to access $40,000 from his superannuation and $20,000 from his mother-in-law to be able to do so (transcript/34). It is also likely that he could arrange for some of his belongings to be delivered to him in immigration detention, or for his belongings to be packed for him by his wife (although I note that they are currently prevented by her bail conditions from speaking to each other), his mother-in-law or a friend, and sent to him in New Zealand.
154. The Applicant also expressed concerns about being able to find housing. However, he confirmed that he can stay with his mother in New Zealand, although he would be sleeping "on the couch" (transcript/35). The Applicant's mother appears to be supportive of him, and as I mentioned above, previously travelled to Australia for a period of 16 months to assist him to care for his children. She returned to New Zealand 18 months ago and was unable to return to Australia due to COVID-19 travel restrictions. The Applicant also has immediate family in New Zealand including his father, three sisters, two uncles, an aunt, and numerous cousins (transcript/10-11), and so it is likely that he will have social and emotional support from his family if he is returned there.
155. The Applicant will also have access to the same social, medical and economic supports as other citizens of New Zealand, which are equivalent to those available in Australia (Webb v Minister for Home Affairs [2020] FCA 831 at [98]; Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [68]- [69]).
156. Overall, there are likely to be some impediments that the Applicant would face establishing himself in New Zealand and maintaining basic living standards, although these impediments are likely to be in the short term. Therefore, I find that this consideration weighs only slightly in favour of revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 90)
157. Paragraph 9.3(1) of Direction No 90 provides that:
(1) Decision-makers must consider the impact of the section 501 or 501CA decision 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
158. There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), any victims of the Applicant's offending, or any family members of victims. Consequently, this consideration is not relevant.
Links to the Australian community (paras 9(1)(d) and 9.4 of Direction No 90)
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 to 9.4.2 below.
160. This requires consideration of the strength, nature and duration of an applicant's ties to Australia and the impact of non-revocation of a cancellation decision on Australian business interests.
Strength, nature and duration of ties to Australia
161. Paragraph 9.4.1(1) of Direction No 90 provides that:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
162. Further, paragraph 9.4.1(2) of Direction No 90 provides that:
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
less weight should be given where the non-citizen began offending soon after arriving in Australia; and
more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) 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.
163. The Applicant has resided in Australia for approximately 10 years, having arrived in Australia in June 2012 when he was 28 years of age. His first driving/ traffic offence was committed on 22 October 2014, and his first criminal offences were committed on 16 October 2019. Therefore, it cannot be said that the Applicant began offending soon after arriving in Australia.
164. The Applicant has a nine-year work history as a chef, including as an executive chef, head chef and catering manager, since his arrival in Australia. He listed his positive contributions to the community in his personal circumstances form to include working as a head chef at a long table lunch in conjunction with a local council (G10/59). It is unclear if this work was volunteer work, or paid work. Apart from his work history, there is no evidence before me that the Applicant has undertaken any volunteer or community work. I therefore find that he has made some positive contributions to the community through his employment.
165. The Applicant's wife is also a New Zealand citizen. As mentioned above, there is some uncertainty regarding the Applicant's wife who has an upcoming trial by jury listed in the Perth District Court in August 2022 and a remand court hearing listed in the Magistrates Court on 16 August 2022 (R4). This raises the prospect of her Visa being mandatorily cancelled if she fails the character test. The Applicant's evidence was that he and his wife were not currently permitted to communicate due to the conditions of her bail, however, they otherwise appear to be on good terms. If she is permitted to stay in Australia, the Applicant's removal may have a detrimental financial impact as he pays the mortgage on the house that his wife and the children live in, although there is no information before the me regarding his wife's income.
166. As I have discussed above, the Applicant has three minor daughters who live with their mother. They are his strongest link to the Australian community. His two eldest daughters were born in New Zealand, and his youngest daughter was born in Australia (G10/52; transcript/16). It is unclear to me whether the children have a definite right to remain in Australia, however, I will proceed to the benefit of the Applicant, that they do have such a right.
167. I also note an undated reference from the Applicant's former employer, DC, which states that he would re-employ the Applicant if he had the opportunity (G16/77). I also note a reference from a former work colleague and friend, LC, dated 1 February 2021 (G16/79). Neither reference refers to the Applicant's offending or his visa cancellation. I am willing to give these letters some, albeit minimal, weight as demonstrating some ties to the community in the areas of employment and friendship.
168. In summary, the Applicant's ties to Australia are not strong or extensive. He has resided in Australia for approximately 10 years, and has financial ties to Australia, including owning a house. His minor daughters reside in Australia, as does his wife. He also has an aunt in Brisbane (transcript/10). However, his other immediate and extended family (including his parents and siblings) reside in New Zealand. There is minimal evidence of other connections to the Australian community, such as friendships and community contributions (apart from employment).
169. On balance, I find that para 9.4.1 of Direction No 90, being the strength, nature and duration of the Applicant's ties to Australia, weighs only slightly in favour of the revocation of the Cancellation Decision.
170. Paragraph 9.4.2(3) of Direction No 90 provides that:
(3) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
171. This consideration does not arise on the material before me and is therefore not relevant.
172. The Applicant does not pass the character test under s 501 of the Migration Act.
173. I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 90.
174. For the reasons set out above, I made the following findings about the following relevant primary considerations in Direction No 90:
(a) the protection of the Australian community primary consideration weighed moderately to strongly against the revocation of the Cancellation Decision;
(b) the best interests of the Applicant's minor daughters, T, A and S, weighed moderately in favour of the revocation of the Cancellation Decision; and
(c) the expectations of the Australian community weighed strongly against the revocation of the Cancellation Decision.
175. I made the following findings with respect to the other considerations that were relevant:
(a) the extent of impediments if removed weighed only slightly in favour of the revocation of the Cancellation Decision;
(b) the Applicant's links to the Australian community also weighed only slightly in favour of the revocation of the Cancellation Decision.
176. I find that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh the primary consideration of the best interests of the Applicant's three minor daughters. Although the strength, nature and duration of the Applicant's ties to Australia consideration also weighs slightly in favour, and the other consideration of extent of impediments if removed also weighs slightly in favour of revocation of the Cancellation Decision, they do not do so to the extent that I can be satisfied that there is another reason to revoke the Cancellation Decision.
177. In summary, having weighed the considerations in favour of, and against, revocation of the Cancellation Decision, I find that the considerations against revocation of the Cancellation Decision outweigh those in favour of revocation. Accordingly, there is not another reason why the Cancellation Decision should be revoked.
178. The Reviewable Decision, being the decision of a delegate of the Respondent dated 17 December 2021 not to revoke the cancellation of the Applicant's Visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed.
I certify that the preceding 178 (one hundred and seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
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