"the material before me demonstrates that Clemas and productive life in the community. But his persistent, and on the evidence before me, relatively low-level drug use, must be addressed. So too must his behavioural attitudes, going back to his childhood. They appear to have pushed askew what we would regard as an ordinary moral compass. There is a need for treatment and support, both in jail and the community. I have some confidence that, with assistance, he will not reoffend. These matters provide a basis for finding special circumstances, increasing the period he should spend on parole. > > Returning to what I said earlier, this was a serious offence. But it is by no means the most serious. Far from it. His involvement in this transaction, although I can only make limited findings of fact, warrant a custodial sentence of some length. He is not to be punished for his protestations of innocence, but I sense according to the jury verdict. He does not get the benefits that an early plea of guilty could have achieved. At the same time, these facts do not call for a sense anything like the maximum or the standard non-parole period. This crime is very much of a lower order than many sentence by this court".

58. It was submitted that the Applicant is aware of the fact that he has no other chance. It was submitted that the Applicant's family would not have supported him to the extent that they have if they thought that he would continue with criminal behaviour. It was submitted that the Applicant has made poor choices and stupid mistakes, however, as a consequence he went to jail. It was submitted that there is no excuse for bad behaviour, but the Applicant is not a paedophile, a murderer, a drug dealer, or somebody engaged in violence. It was submitted that the Applicant should have seen the red flags, that he breached the law and has been punished dearly. It was submitted that with respect to the New Zealand offending that the Applicant was sentenced to home detention suggestive of the fact that the offending was not too serious. It was submitted that these were the factors that needed to be considered.
59. It was submitted that with respect to the Applicant's son, that interaction through social media is not the same as human contact. A son needs a father to take him places to spend time with him, but this is part of the human condition that humans are not machines, and the Applicant needs to be in Australia to support his sons transition into manhood.

Migration Act

1. Under s 501(3A), the Minister must cancel a visa that has been granted to a person if, relevantly:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of paragraph 501(6)(a) (substantial criminal record), on the basis of paragraph 501(7)(a), (b) or (c); 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.

2. The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by s 501(7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
3. Where a visa has been cancelled as set out above, the Minister has a power under

s 501CA(4) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked.3 4. Where the cancellation decision is not revoked, the Applicant's has a right of review to the Administrative Review Tribunal.32

1. The issues for determination before the Tribunal are:

1. whether the Applicant passes the character test for the purposes of s 501 of the Migration Act, as defined in s 501(6); and

(b) if not, whether there is another reason why the original cancellation decision should be revoked.

2. The Applicant has conceded that he does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a 'substantial criminal record' as defined under s 501(7). It follows that the Applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
3. Section 501CA(4)(b)(ii) of the Migration Act requires the Tribunal to be satisfied that there is another reason why the original decision should be revoked.
4. Direction 110 sets out the principles which provide a framework "within which decision makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA". These are outlined as follows.

(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) The safety of the Australian Community is the highest priority of the Australian Government. > > (3) 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. > > (4) 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 measurable risk of causing physical harm to the Australian community. > > (5) 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 non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. > > (6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. > > (7) 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. > > (8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

5. Thus, the question in issue is whether there is another reason why the original cancellation decision should be revoked.
6. This involves giving appropriate weight to the considerations in Ministerial Direction 110 (both primary and other), requiring the Tribunal to examine factors for and against revoking the visa cancellation, and assessing and evaluating those factors to form a view as to whether the cancellation should be revoked.3
7. Direction 110 sets out Primary Considerations and Other Considerations. These are addressed under their respective headings below.

1. The Direction states that Primary consideration 8.1 (protection of the Australian community) is generally to be given greater weight than other primary considerations.
2. 8.1. Protection of the Australian community.

(1) When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, 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.

(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

The Nature and Seriousness of the Applicant's Conduct to Date

1. When assessing the nature and seriousness of a non-citizen's criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, which the Tribunal will now address.
2. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that, without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent and/or sexual nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
3. The Applicant's criminal history is captured in his Nationally Coordinated Criminal History Check at HB49-51.
4. Having regard to the nature and seriousness of the Applicant's conduct there is no evidence before the Tribunal that the Applicant has engaged in violent crimes or crimes of a sexual nature and there is no evidence of any acts of family violence in the Applicant's profile.
5. Paragraph 8.1.1(1)(b)-(h) of the Direction specifies that when considering the nature and the seriousness of the conduct engaged in that "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". These crimes include causing a person to enter into or being party to a forced marriage, regardless of whether there is a conviction for an offence, or a sentence imposed; 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. A decision maker is also able to consider 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-makers opinion. The paragraph also refers to crimes whilst a non-citizen was in immigration detention. The paragraph also requires an assessment of the impact of the offending on any victims of the offending, the frequency of the non-citizens offending, the cumulative effect of repeated offending, whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending, and whether the non-citizen has re-offended since being formally warned about the consequences of further offending behaviour. It also requires an assessment of an offence or conduct committed in another country, whether that offence is classified as an offence in Australia.
6. The only documentary evidence that the Tribunal has pertaining to the Applicant's New Zealand offending is in the hearing book at HB 105. That evidence indicates that the Applicant committed two offences in New Zealand, the first on 1 October 2002, and the second on 3 June 2003. The 2002 offence was for knowingly supply/produce equipment for production and cultivation of drug. The 2003 offence was for possess equipment capable of producing cultivating drugs (not cannabis). The evidence suggests that the Applicant was sentenced on 6 July 2004. The record indicates that the Applicant was required to serve a term of imprisonment by way of home detention for a period of six months for each offence. The record indicates that the sentencing judge formed the view that it was safe to allow the Applicant to serve his sentence whilst living in the community, albeit being monitored via an electronic ankle bracelet. There is no other written evidence before the Tribunal with respect to this offending or evidence that the Applicant breached the conditions pertaining to his home detention.
7. The only other evidence obtained with respect to this offending, was the Applicant's own oral evidence at hearing in which he provided a description of the offending behaviour. The description indicated that a number of co-offenders were involved in smuggling Telfast tablets containing pseudoephedrine from Australia to New Zealand. The Applicant's evidence was that the monies generated from this illegal enterprise would be given to him to manage, due to his business acumen, to invest in legitimate enterprises. Clearly the enterprise was detected by customs officials at Auckland Airport leading to the charges and subsequent convictions.
8. It was suggested by the Minister's representative that the Applicant's evidence with respect to this incident was not particularly clear and discussion was had as to whether the Applicant's movement record was reflective of a greater role in the criminal enterprise for which he was convicted in 2004.
9. In this respect, the Tribunal can only have regard to the facts before it, which as discussed indicate that the Applicant had a role in the criminal enterprise that warranted a custodial sentence, with the Applicant been given leave to serve the sentence by way of home detention. The sentencing magistrate or judge would not have given the Applicant this opportunity if they believed there was a risk of further offending by the Applicant in the community, or any risk to the community by having him present in it, or a risk of breaches of the conditions pertaining to his home detention. As discussed, there is no evidence of any breaches of the home detention order before the Tribunal.
10. The evidence before the Tribunal indicates that the Applicant's first conviction in Australia was on 28 September 2006, driving with a low range prescribed concentration of alcohol, for which he received a three-month driving disqualification and a fine. The Applicant's next conviction was on 13 October 2008 for driving on the road whilst his licence was suspended for which he was subject to a further driving disqualification and a fine.
11. From the conviction on 13 October 2008, the evidence indicates that the Applicant had not engaged in any offending behaviour until 2013, a period of some five years. The 2013 offending related to dishonesty offences namely obtaining financial advantage by deception along with the possession of a prohibited drug. The evidence as discussed indicates that the Applicant was sentenced in the Burwood Local Court on 11 February 2016 for a raft of dishonesty offences that are documented at HB 51 and consist of 9 offences. As discussed, the Applicant and his co-accused, Mr Smith, were charged for using stolen credit cards to purchase expensive items from a range of stores around Sydney. When the Applicant and his co-accused were located by police, they were found to be in possession of one small resealable bag with a white crystalline matter in it (methamphetamine). The Applicant was also found to be in the possession of three mobile phones and entries in one of the mobile phones was suggestive of the Applicant being intrinsically involved in the offending behaviour.
12. The Applicant's evidence under oath before the Tribunal was that he was just driving his co-accused around, that he did not know that the credit cards had been stolen, that he did not use any credit cards himself and he did not obtain financial benefits. The Applicant stated in his evidence that he and Mr Smith lived in the Sutherland shire and were acquaintances. The Applicant claimed that the three mobile phones found in his possession were for legitimate purposes. One was for personal use, the second was for business use, and the third was for orders pertaining to his bubble bath business. The Applicant was not able to explain why text messages on his mobile phone related to card numbers directly implicating him in the offending. The Applicant stated that the methamphetamine found in Mr Smith's possession belonged to Mr Smith. The Applicant described Mr Smith as a friend and that he helped him by driving him round to a number of shops. It was put to the Applicant at hearing by the Respondent's representative that his evidence was not true and that what was contained in the police facts pertaining to this offending located at HB 337-345 was a true account of what transpired. The Applicant stated that he disagreed with a lot of what was in the police facts sheet. The Applicant conceded that the drug charge and credit card offending was wrong and grounded a conviction.
13. It was submitted on behalf of the Applicant that this offending was dealt with in the Burwood Local Court with the imposition of a term of imprisonment for 8 months, which was wholly suspended, on the basis of the Applicant entering into a good behaviour bond for 8 months. It was also submitted that these convictions were slightly reduced on a severity appeal by the Downing Centre District Court on 9 March 2017, and this is borne out in the criminal history check at HB 50.
14. It was further submitted on the Applicant's behalf that had the Applicant been a risk to the community, or a risk of engaging in further offending that he would not have been the subject of a good behaviour bond with respect to this offending.
15. The evidence before the Tribunal indicates that after the dishonestly obtain financial advantage by deception matters in 2013, the Applicant did not engage in further offending until 2022, at which time he engaged in the index offending of supply prohibited drug, commercial quantity, for which he was sentenced to a term of imprisonment by the Wollongong District Court on 24 November 2023.
16. Prior to being sentenced for this offending the evidence indicates that the Applicant was granted bail, which indicates that an assessment was made that despite the nature of the Port Kembla offending, the Applicant's presence in the community was deemed not to present a risk to the community.
17. The evidence indicates that whilst on bail for the index offending the Applicant's warehouse premises in Lansvale that he used for his car hire business were attended by police on 6 November 2022. The police facts sheet with respect to this offending is located at HB 378--382. The facts sheet at HB 381 indicates the following:

The accused makes mention he also rented out parts of the unit to another party by the name of Simon Tran. The accused states Simon rarely attends the location and has other people working for him. The accused was unable to provide further details in relation to the person mentioned. > > Multiple drug Paraphernalia and other illicit substances could be seen in plain view these were located on desk 1. The accused made admissions seeing drug paraphernalia and illicit substances on desk 1. > > The accused stated that his desk was in the middle of the office with the Apple Computer mentioned before. The third desk was a spare and no other person occupied it. > > The accused made admissions to attending the unit regularly "every second day" for about "1 to 2 hours". Police questioned the accused about the apparent drug paraphernalia and illicit substances situated within the office room. The accused stated he showed concern and had words to 'Simon'. > > The accused denies any knowledge of an active clandestine drug laboratory, however, acknowledge there were illicit substances throughout the office".

18. The Tribunal notes that the information contained in the police facts sheet, largely accords with the evidence of the Applicant at hearing. This confirms that he had rented part of the warehouse premises to another party. That he had observed drug paraphernalia namely a 'glass bong' on the desk of the sub-tenant, and that he had spoken to the sub-tenant about his concerns with respect to this.
19. The evidence indicates that because of the Applicant being charged with owner/occupier knowingly allow uses drug premises first offence, that the bail that had been granted to him with respect to his index offending, the Port Kembla offending was revoked. The evidence further indicates that the Applicant paid a heavy personal price with respect to the sub-letting of the premises as all the cars and other possessions housed in the warehouse by the Applicant were confiscated (presumably under proceeds of crime legislation) and the Applicant had to pay for the balance of the lease agreement. The Applicant gave evidence that this left him around $100,000 out of pocket.
20. The Tribunal agrees with the descriptors of the Applicant's offending history made by the Minister's representative at hearing. Namely that the offender had a propensity to place himself in bad positions and at best this was based on 'stupidity' and at worst it was based on 'ambivalence'.
21. The Applicant's twin brother Darryn Clemas gave evidence that prior to his brother's imprisonment that he had formed a view that the Applicant was making poor choices with respect to his associations. Indeed, Darryn Clemas suspected that some of his brothers' associates may be involved in criminal actions. His evidence suggested that the Applicant in his drive to be successful, along with his kind-hearted nature, led to bad decision making and poor associations.
22. 8.1.1(1)(b) states that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described in this part of the Direction are considered by the Australian Government and the Australian community to be serious.
23. There is no evidence that the Applicant has caused a person to enter into or to be a party to a forced marriage.
24. There is no evidence that the Applicant has committed crimes against government representatives or officials due to the positions that they hold.
25. There is no evidence before the Tribunal that the Applicant's offending impacted vulnerable members of the community, such as the elderly or the disabled.
26. Having regard to any conduct that forms the basis for finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-makers opinion (for example, section 501(6)(c)). The Tribunal finds having regard to the Applicant's past criminal conduct that he is not of good character.
27. The evidence indicates that the Applicant's history in prison and immigration detention has been uneventful. The Applicant was subject to drug testing in prison and all tests were negative. The Applicant had no other issues in prison and used his experience as a chef to cook in the prison kitchen.
28. With respect to 8.1.1(1)(c) the Applicant has been the subject of one full time custodial sentence for his offending behaviour. The custodial sentence was imposed by the District Court in Wollongong for the index offending of supply prohibited drug, commercial quantity. As discussed at the hearing, the Tribunal must accept the findings of the court and is unable to go behind those findings. However, the Tribunal notes the unease that the sentencing judge, Judge Haelser had about the jury findings reflected in his sentencing comments. Judge Haesler stated that:

"There were a number of unanswered issues raised by the prosecution case, not the least of which is why drugs were first transported to Port Kembla, and then, after a two-hour period returned to Liverpool. > > The jury obviously did not accept Mr Clemas told the truth in his police interview. I am deeply sceptical that any civilian witness at the trial was entirely truthful. The taxi driver, in my opinion, was trying to distance from the parcel and the suspicious circumstances involved in transporting it. The person who took the parcel to the car was not of good character. The Port Kembla witness was also suspected of being involved in criminal activity. > > My sentence must be consistent with the jury verdict. Matters and aggravation must be proved beyond reasonable doubt. Matters in mitigation must be proved on balance of probability. The evidence at trial enables only limited findings of fact to be made".

29. Despite this, Judge Haesler found that "so serious was his involvement that it is accepted that only a custodial sentence could properly reflect the objective seriousness of the crime. There are, of course, many more serious offences of this type, but that does not mean it was not a serious offence". Judge Haesler observed that:

"many of the factors which can lead to very significant sentences for commercial supply offences are absent in this case. No transaction occurred. There is no evidence money was exchanged. There is no evidence of significant planning. There is no evidence that Clemas was aware of the exact quantity of the drugs. There is no evidence of the reward that he might have expected, though one must be presumed. Risk and such altruism are rare. No drugs were disseminated into the community. There is no evidence that Clemas had any other involvement other than that which was put before the Court. As is commonly the case, it appears he was being used by others".

1. Judge Haesler also made reference to the Applicant's criminal history. He noted that:

His record reveals dishonesty offences in 2013 but before this matter his criminal record was minimal. The drug premises offence was committed after this matter. It is relevant, only to give some support to the proposition that he was an illicit drug user and that he had little respect for the law. > > His record prior to the commission of this offence had nothing of this nature. While he is not entitled to leniency often given to 1st offenders, it is his first time in jail and there is reason to suspect that if he engages in rehabilitation, he can resume normal community life.

2. The full-time custodial sentence in the view of the Tribunal is indicative of the seriousness in which the Port Kembla offending was viewed by the Courts.
3. The New Zealand offending from 2002 and 2003 was dealt by way of home detention.
4. The 2013 dishonesty offending was dealt with by way of a good behaviour bond.
5. With respect to 8.1.1(1)(d) the Applicant's criminal offending history did not involve crimes of violence. With respect to the Applicant's dishonesty offending with Mr Smith in 2013, it is clear that any victim of credit card fraud would have suffered potential pecuniary losses and felt violated by the theft of their credit cards.
6. With respect to 8.1.1(1)(e), the frequency of the non-citizens offending and/or whether there is any trend of increasing seriousness, the Tribunal finds as follows: the evidence as discussed does not indicate a consistent pattern of offending by the Applicant. His first offences occurred in 2022 and 2003 in New Zealand. Apart from his driving offences in Australia in 2006 and 2008 there was a gap in offending until 2013 and then a further gap until 2022. Hence the Tribunal finds that the Applicant's offending was infrequent. The evidence with respect to the Port Kembla conviction indicates that the 2022 offending came within the ambit of serious offending as reflected by the imposition of a full-time custodial sentence.
7. With respect to 8.1.1(1)(f), there is no evidence pertaining to the cumulative effect of repeat offending by the Applicant.
8. With respect to 8.1.1(1)(g), there is no evidence that the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
9. With respect to 8.1.1(1)(h), there is no evidence before the Tribunal which indicates that the Applicant has been formally warned in writing about the consequences of further offending in terms of his migration status.
10. Having regard to 8.1.1(i), the Applicant's New Zealand offending from 2002 and 2003 has been extensively discussed.
11. The sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh against the revocation of the cancellation of the Applicant's visa.

The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

1. 8.1.2. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

(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. > > (2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively: > > the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and > > 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 non-citizen 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). > > where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

2. The Applicant's representative has submitted that the Applicant does not pose a risk of reoffending and submits there are a number of protective factors in place. Further to this the Applicant has provided evidence as to why he believes that his presence in the Australian community does not present any risk to the Australian community.
3. The Applicant gave evidence under oath that he is not a habitual drug user and did not have an addiction to methamphetamine and that his use of methamphetamines was restricted to the odd social occasion. The Applicant gave evidence that it was his belief that he last used methamphetamines approximately 2 and a half years ago in a social setting. The Applicant gave evidence that he did not use drugs whilst in prison and the records before the Tribunal indicate that the Applicant produced clear drug tests whilst in custody.
4. The Applicant gave evidence that despite his disagreement with aspects of police fact sheets and with the findings of the jury in his District Court proceedings in Wollongong, the Applicant accepts that he has been convicted of a number of offences culminating in a period of imprisonment for his index offending in Port Kembla.
5. The Applicant provided evidence to the Tribunal that much of his offending behaviour in the past has been due to the fact that he has been too trusting of associates leading to poor decision-making and poor associations. The Applicant further believes that these deficiencies with respect to his decision-making have been compounded by unresolved childhood trauma, namely the fact that he had experienced child-abuse and had never sought proper intervention for the substantial impact upon him.
6. Evidence provided to the Tribunal at review indicates that the Applicant has engaged in a number of self-development courses in an attempt to address some of his underlying issues. The Applicant provided certificates of completion for a number of courses that he had undertaken. This included a course with respect to child-abuse recognition, investigation and protection, stress management and anxiety therapy. The Applicant gave evidence at the review hearing that since being released from prison on parole and transferred to the Villawood Immigration Detention Centre that he is engaged with mental health services in the detention facility. They are in the process of organising for him to be seen by a psychologist. The Applicant gave evidence at the review hearing that upon release into the community he intends to engage in psychological intervention and counselling with respect to unresolved trauma.
7. The Applicant gave evidence that he is 60 years old. He is conscious of his past associations having a detrimental impact on his life. The Applicant gave evidence that if he is released back into the Australian community that he wishes to confine himself to his family, predominantly his son, his twin brother, his stepchildren and step grandchild. The Applicant is also committed to working alongside his twin brother in the hospitality industry as a chef and evidence was provided by the Applicant and his twin brother that a position is available to him if he is released back into the community.
8. The Applicant believes that his full-time custodial sentence had a profound and sobering impact on him. The Applicant gave evidence that it removed him from his biological son during an extremely important and formative part of his life, namely his transition from childhood to manhood. The Applicant gave evidence that he is committed to be a strong part of his son's life going forward if he is released into the community and notes that his son, now age 16, is still at an important and formative stage of his life. The Applicant has acknowledged that his past actions have significantly impacted his immediate family including his biological son, stepchildren, step-grandchild and his identical twin brother. The Applicant gave evidence corroborated by his witnesses that he has a genuine commitment to rehabilitation, to addressing unresolved childhood trauma, and that his family network will serve as a strong protective factor going forward.
9. The Minister's representative noted in submissions to the Tribunal that the Applicant's family did not serve as a protective mechanism to prevent offending in the past. With respect to this the Tribunal notes that the Applicant has now been subject to a term of imprisonment, removed from his family, and continues to be removed from his family as a consequence of his immigration detention. The evidence before the Tribunal indicates that the Applicant's close family members believe that he should be given a second chance to show that he can live the remainder of his life as a law-abiding member of the Australian community. The Applicant gave evidence to the Tribunal that it is his belief that he should be given this chance and that he will not reoffend in the future or present a risk to the Australian community.
10. The Applicant's representative noted that the Applicant had a positive employment history. As has been discussed the Applicant has a job offer to work as a chef in the same organisation as his twin brother. The Applicant's prospective employer is aware of his criminal history and is still willing to employ him going forward. It was submitted to the Tribunal that this is an additional protective factor.
11. The Applicant's representative notes that the Applicant has prepared a reintegration plan should he be allowed to return to live in the Australian community. As noted, this includes ongoing rehabilitation, the Applicant engaging with counsellors with respect to past drug use and psychologists with respect to past childhood trauma.
12. The Tribunal is guided by the comments of Judge Haesler in the District Court of New South Wales sitting in Wollongong dated 24 November 2023 and referable at HP 52-59. Justice Haesler formed the view that:

"The material before me demonstrates that Clemas has the capacity to lead a normal law-abiding life and productive life in the community. But his persistent, and on the evidence before me, relatively low-level drug use, must be addressed. So too must his behavioural attitudes, going back to his childhood. They appear to have pushed to askew what we would regard as an ordinary moral compass. There is a need for treatment and support, both in jail and the community. I have some confidence that, with assistance, he will not reoffend. These matters provide a basis for finding special circumstances, increasing the period he should be on parole".

13. The evidence before the Tribunal indicates that the Applicant has heeded the recommendations in the judgement of Judge Haesler, the Applicant has engaged in rehabilitation programs whilst in prison. The Applicant plans to continue engagement with rehabilitation services if released into the community that will include counselling for past drug use, and psychological intervention for past child abuse. In addition to this the Applicant has the benefit of a close-knit and supportive family unit and also the close support of his identical twin brother. It appears that the Applicant has put in place a number of protective mechanisms that will provide assistance to him to ensure that he does not reoffend going forward.
14. The respondent has submitted that the Applicant has not undertaken any meaningful formal treatment to address his drug use history and his offending history. The respondent conceded that the Applicant had attended a number of courses aimed at rehabilitation whilst in prison, along with Alcoholics and Narcotics Anonymous groups, as well as chapel services. The respondent noted that the Applicant had committed offences whilst on bail showing an ambivalence for Australian law. The Respondent contends that even if there is a low risk of the Applicant reoffending, any risk is too great a risk.
15. The Tribunal in looking at risk to the Australian community should the Applicant commit further offences or engage in other serious conduct has had close regard to the Applicant's criminal history and to the various protective factors that are in place.

1. Primary Consideration 1 weighs against a decision to revoke the cancellation, however, the weight afforded to this consideration is reduced by a number of protective factors in place which the Tribunal finds will mitigate the risk of future offending in the circumstances of this case.

1. There is no evidence before the Tribunal which indicates that the Applicant has engaged in family violence and hence this consideration is afforded neutral weight by the Tribunal.

1. Primary Consideration 2 is not relevant and accordingly is given neutral weight.

PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA

1. Having regard to this primary consideration Direction 110 states the following:

(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. > > (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 non-citizen 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: i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and ii. 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.

2. The Tribunal must (8.3(1)) consider any impact of its decision on the Applicant's immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
3. Paragraph 8.3(2) of the Direction allows for the consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community.
4. The evidence before the Tribunal indicates that the Applicant's biological son (a minor), adult stepchildren, identical twin brother, and ex-wife (with whom he co-parents their son) reside in Australia. The evidence indicates that the Applicant's son and stepchildren are Australian citizens, his twin brother is a permanent resident, and his ex-wife is an Australian citizen.
5. The evidence before the Tribunal indicates that the Applicant is very close to his biological son who is 16 years old and was born, raised and educated in Australia. The evidence indicates that the Applicant's son is currently undertaking a plumbing apprenticeship. The Applicant's son gave heartfelt evidence to the Tribunal with respect to the closeness of the relationship that he has with his father. Evidence was provided to the Tribunal by the Applicant, his son, and the Applicant's ex-wife Ms Grima that in the event that the Applicant is released into the community that their son will live between his parents.
6. The evidence indicates that the Applicant is close to his stepchildren, particularly Rhiannon, and evidence was provided at hearing indicating that the Applicant played a strong parental role in their upbringing after forming a relationship with their mother.
7. The evidence before the Tribunal indicates that the Applicant is particularly close to his identical twin brother who is committed to his life in Australia where he has lived for an extended period of time. As discussed, the Applicant's twin brother has been approved by the New South Wales Parole Board as a person suitable to provide support and accommodation to the Applicant when he is released into the community under parole supervision.
8. The evidence before the Tribunal indicates that the Applicant during the time that he has resided in the Australian community has maintained strong employment ties. The Applicant has been made an offer of employment if he is released into the community working alongside his twin brother as a chef.
9. The evidence before the Tribunal indicates that the Applicant whilst living in the Australian community, undertook charitable work, providing food supplies to those in need, an enterprise that he was involved with for a number of years.
10. The Minister's representative, in submissions made to the Tribunal at hearing and in written submissions, accepts that the strength, nature and duration of the Applicant's ties to Australia weigh in the Applicant's favour. The Minister acknowledges the Applicant's strong familial ties and his close relationship with his identical twin brother. The Minister also notes that the Applicant had worked extensively in Australia.
11. When all of these factors are taken into account this consideration is given heavy weight in favour of revoking the cancellation of the Applicant's visa.

1. Primary Consideration 3 is given heavy weight in favour of revocation.

PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

1. The evidence before the Tribunal indicates that the Applicant has a biological son, Master K, who is aged 16 and who is an Australian citizen.
2. The evidence before the Tribunal indicates that the Applicant has been intrinsically involved in the raising of his son and the evidence provided by both the Applicant and his son at hearing are indicative of the closeness of the relationship that exists between them.
3. The evidence before the Tribunal indicates that the Applicant is profoundly remorseful for his offending, particularly given the fact that it removed him from his son's life during formative years, namely part of his son's transition into manhood. The Applicant gave evidence that his son is still at a critical juncture in his life at 16, and that he hopes to be present in the Australian community to provide ongoing support to his son.
4. The importance of the relationship between the Applicant and his son was clearly reflected in the evidence of the Applicant's ex-wife Ms Grima. She advised the Tribunal in her evidence that despite the breakdown of her relationship with the Applicant, that they maintained an amicable and respectful relationship and worked closely together in co-parenting their son.
5. Ms Grima also gave evidence to the Tribunal that there is a strong likelihood that if the Applicant is released into the community that their son may elect to spend a considerable period of time living with his father. She is supportive of this arrangement.
6. The Tribunal finds having regard to the Applicant's very close relationship with his son that the best interests of his minor son weigh heavily in favour of the Applicant. The evidence provided by the Applicant's son at hearing was that he would be adversely affected in the event that his father was deported from Australia. It was also submitted on the Applicant's behalf that a relationship via video calls is not an adequate replacement for an in-person relationship. The evidence indicated that the Applicant's son would not relocate to New Zealand because of the fact that Australia is his home, he is engaging in a plumbing apprenticeship, and his future plans and aspirations are Australian based.

1. Primary Consideration 4 weighs heavily in favour of the revocation of the Applicant's visa.

PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

1. The Tribunal notes that Primary Consideration 5 of Direction 110 states the following.

(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: > > In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Applicant has breached this expectation through his criminal conduct. > > 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 measurable 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.

2. The Applicant's representative concedes that the expectations of the Australian community having regard to his criminal history weighs against the Applicant.
3. The respondent contends that this consideration weighs heavily in favour of non-revocation.
4. Upon consideration of the evidence before it, which has included an assessment of the Applicant's offending history in Australia, the Tribunal is satisfied that the expectations of the Australian community are such, that some weight should be given to this consideration against the revocation of the cancellation of the Applicant's visa.

1. Primary Consideration 5 should be given some weight against a decision to revoke the cancellation.

1. It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. These are considered under their respective headings below.

1. Pursuant to Direction 110 at 9.1 the Tribunal needs to take account the fact that unlawful non-citizens are, in accordance with section 198 of the Act, liable to removal from Australia as soon as is reasonably practicable in the circumstances specified in that section of the Act. Accordingly, if the Tribunal does not revoke the cancellation of the Applicant's visa, he will be held in immigration detention until such time as he can be removed from Australia.
2. Other legal consequences of the decision include a prohibition on applying for other visas, except for a Protection visa or a Bridging R visa under s 501E, and a permanent exclusion from Australia for visas subject to Special Return Criteria 5001(c).
3. The evidence before the Tribunal indicates that the Applicant was born in New Zealand but has lived in Australia for the best part of the last 20 years and last departed Australia in May 2013 arriving back in Australia in May 2013.
4. The Applicant in this case does not contend that non-refoulement obligations are relevant or arise with respect to him.
5. The Minister argues that limited weight should be given to this consideration
6. The Tribunal finds that none of these consequences would be desirable from the Applicant's perspective and hence this consideration is given some weight in favour of revoking the visa cancellation.

1. The Tribunal has given consideration to 9.2 of Direction 110 the extent of impediments if removed from Australia.
2. The Applicant's representative has argued that the Tribunal should take into account the fact that the Applicant is now 60 years old. The Applicant's representative submits that whilst New Zealand is culturally and geographically close to Australia that many New Zealanders have migrated to Australia because of better financial and employment opportunities offered in this country. The Applicant moved to Australia to reunite with his identical twin brother and to pursue better opportunities going forward. The Applicant's representative has submitted that a significant impediment to the Applicant's removal is the fact that his 16-year-old son is an Australian citizen who is not able to simply relocate to New Zealand to be with his father for a range of factors. The Applicant's representative submits that this factor should weigh in the Applicant's favour with respect to revocation of the cancellation decision.
3. The Minister's position with respect to the extent of impediments if removed from Australia is that the Applicant resided in New Zealand until he was a mature adult and began residing permanently in Australia in January 2008 when he was 42 years old. The Minister states that even if it was to accept the Applicant's claim that he commenced residing in Australia in 2000 that he was 35 years of age when he did so. The Minister posits that the Applicant would not experience any substantial language or cultural barriers in New Zealand. Further to this the Applicant's employment history in Australia may be of assistance to him obtaining similar work in Australia. In addition, the Applicant would be able to avail himself of access to health services, treatment and welfare to the same standard as all New Zealand citizens. Further the Minister contends that there is no evidence that is been provided that the Applicant would not be able to access counselling and psychological support to treat his underlying mental illnesses if he was to return to New Zealand and the Minister's position is that this consideration weighs minimally in favour of revoking the cancellation of the Applicant's visa.
4. Having regard to the impact on Australian business interests the Applicant's representative submitted that chefs are on the skills shortage occupation list in Australia, particularly in rural Australia. The Applicant has worked prior to his incarceration with his brother as a chef and has been offered work as a chef if he is released back into the Australian community. The Applicant's representative contends that this consideration should be given some weight in favour of revoking the cancellation of the Applicant's visa because his removal from Australia may have an impact on Australian business.
5. The Minister's representative submits that there is no evidence before the Tribunal that the Applicant's removal from Australia will have an impact on Australian business interests if the Applicant is not allowed to enter or remain in Australia. It was submitted at hearing that there is no evidence that the Applicant's removal would have a negative impact on a major project. It was submitted that neutral weight should be afforded to this consideration with respect to revoking the cancellation of the Applicant's visa.

1. Having regard to the evidence before it the Tribunal finds that there is another reason to revoke the original decision.
2. Having close regard to the principles in paragraph 5.2 of Direction 110, the Tribunal has taken into account the considerations identified in sections 8 and 9 of the Direction which are relevant to this decision. The Tribunal has duly considered the matters raised by the Applicant in this review.
3. The following considerations are given some weight against a decision to revoke the cancellation:

(a) Primary Consideration 1, Protection of the Australian community from criminal or other serious conduct;

(b) Primary Consideration 5, The expectations of the Australian community.

1. Primary Consideration 2 is not relevant and hence given neutral weight.
2. Primary Consideration 3 for the reasons provided is given strong weight in favour of revocation.
3. Primary Consideration 4 for the reasons provided is given strong weight in favour of revocation.
4. To the extent that they are relevant, the Other Considerations are given some weight in favour of revocation.
5. For the comprehensive reasons that the Tribunal has provided the Tribunal is satisfied that there is another reason to revoke the visa cancellation.

1. The Tribunal sets aside the decision under review and in substitution decides that there is another reason to revoke the cancellation of the Applicant's visa.