Pokrywka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5165 (22 December 2020)

1. The issue for determination is whether the Tribunal should exercise the power in s 501CA(4) of the Act to revoke the decision made under s 501(3A) of the Act to cancel the visa. That will require determination of:

(a) whether the Applicant passes the character test (as defined by s 501 of the Act); and

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

1. The Applicant is a 51-year-old citizen of the United Kingdom (born 2 March 1969). The Applicant first arrived in Australia in December 1981 at the age of 12. Since his arrival the Applicant has departed Australia on two occasions, firstly in 2006 for 17 days and in then in 2010 for eight days.[1]
2. The visa that is the subject of these proceedings was granted to the Applicant on 22 August 2006.[2]
3. The Applicant's first conviction was for stealing in May 1987. Between 1987 and 2018 he was convicted of 64 offences (see [34] below and attached schedule of convictions).
4. In 2019 and 2020 the Applicant was convicted of three further serious offences. On

8 February 2019, the Applicant was sentenced in the District Court of Western Australia to a term of imprisonment of six months for possession of stolen or unlawfully obtained property and to a term of imprisonment of 13 months for possession of a prohibited drug with intent to sell or supply (methylamphetamine).[3] The Applicant pled not guilty and was convicted after a trial.[4] The facts of the possession with intent offence were that on 11 February 2018 the Applicant was found in possession of 6.92 grams of high purity methylamphetamine which, the sentencing judge found, the Applicant intended to sell as part of a "commercial drug dealing enterprise".[5] The sentencing judge also found "beyond reasonable doubt that the money [the stolen or unlawfully obtained property] on count 2, $2150, was money from your past drug dealing".[6] 5. On 21 August 2019 the Applicant was given notice that his visa had been cancelled under s 501(3A) of the Act.[7] The visa was cancelled on the basis that the Applicant had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months for the offence of possession of a prohibited drug with intent to sell or supply and was 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 Territory.[8] 6. On 11 September 2019 the Applicant requested revocation of the decision to cancel his visa.[9] 7. On 28 February 2020 the Applicant was sentenced in the District Court of Western Australia to a term of imprisonment of five years and 10 months for possession of a trafficable quantity of methylamphetamine with intent to sell or supply it to another.[10] The Applicant pled not guilty and was convicted after a trial.[11] The Applicant committed this offence on 13 September 2018 when he was on bail for the drug offences committed on 11 February 2018.[12] The facts of the offence were that the Applicant was caught by police with five ounces (approximately 142 grams) of high purity methylamphetamine whilst travelling with a drug dealer who was under police surveillance.[13] 8. On 1 October 2020 a delegate of the Respondent decided, under s 501CA(4) of the Act, not to revoke the decision to cancel that Applicant's visa.[14] 9. On 6 October 2020 the Applicant was notified of the decision not to revoke the decision to cancel his visa.[15] 10. On 9 October 2020 the Applicant lodged an application for review of the delegate's decision of 1 October 2020 with this Tribunal.[16]

1. Section 501(3A) of the Act provides that:

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

(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.

1. A "substantial criminal record" is defined by s 501(7) of the Act as follows:

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

(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;

1. Section 501CA of the Act provides:

(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.

...

(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(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.

1. Section 499(1) of the Act provides that:

(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

1. Section 499(2A) of the Act states that: "[a] person or body must comply with a direction under subsection (1)".
2. On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Act, titled "Direction No. 79: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA" (Direction 79). The commencement date for operation of Direction 79 was 28 February 2019.
3. Paragraph 6.1 sets out the objectives of Direction 79. Paragraph 6.1(3) relevantly provides:

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 his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

1. Paragraph 6.2 of Direction 79 provides general guidance as follows:

(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen's visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

(3) The principles 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. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

1. Paragraph 6.3 of Direction 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4) of the Act, including the Tribunal. They 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) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

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

1. Paragraph 7(1)(b) of Direction 79 provides that, informed by the principles set out in paragraph 6.3, the decision-maker (in this case the Tribunal) must take into account the considerations in Part C of Direction 79 in order to determine whether the mandatory cancellation of the visa will be revoked.
2. Paragraph 13(2), which is in Part C of Direction 79, provides:

In deciding whether to revoke the mandatory cancellation of a non-citizen's visa, the following are primary considerations:

1. Protection of the Australian community from criminal or other serious conduct;
2. The best interests of minor children in Australia;

1. Further guidance as to how a decision-maker is to apply the considerations in Direction 79 can be found in paragraph 8 of Direction 79 which provides:

(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

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

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

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

1. The application was heard on 8 December 2020. The Applicant was unrepresented. The Respondent was represented by Mr A Burgess, of Sparke Helmore Lawyers.
2. The following documents were admitted into evidence:

(a) Applicant's Statement of Facts, Issues and Contentions, received on 23 November 2020 (Exhibit A1);

(b) handwritten statement of the Applicant addressed to Deputy President Boyle, received by the tribunal on 23 November 2020 (Exhibit A2);

(c) handwritten statement of the Applicant, titled "Responce [sic] to criminal Record", received by the tribunal on 23 November 2020 (Exhibit A3);

(d) handwritten statement of the Applicant, titled "Reoffending Plan", received by the tribunal on 23 November 2020 (Exhibit A4);

(e) letter from Rebecca Jones, registered psychologist, dated 26 October 2020 (Exhibit A5);

(f) letter from Robert Haywood, provisional psychologist at Collie Family Centre, dated 13 October 2020 (Exhibit A6);

(g) letter from principal of A's primary school, dated 15 October 2020 (Exhibit A7);

(h) statutory declaration of Shane Robins, sworn or declared on 20 September 2018 (Exhibit A8);

(i) handwritten statement of the Applicant's wife, received by the tribunal on 23 November 2020 (Exhibit A9);

(j) handwritten statement of the Applicant's mother, dated 1 November 2020 (Exhibit A10);

(k) handwritten statement of C, the Applicant's daughter, received by the tribunal on 23 November 2020 (Exhibit A11);

(l) statement of J, the Applicant's daughter, received by the tribunal on 23 November 2020 (Exhibit A12);

(m) handwritten statement of the mother of the Applicant's four older children, dated 15 November 2020 (Exhibit A13);

(n) statement of the Applicant's previous employer, dated 1 November 2020 (Exhibit A14);

(o) letter of support from Father Brian Newing, Bunbury Prison coordinating chaplain, received by the tribunal on 27 November 2020 (Exhibit A15);

(p) section 37 G-documents, G1 to G32, comprising 136 pages (Exhibit R1);

(q) summonsed material, comprising 202 pages (Exhibit R2); and

(r) Respondent's Statement of Facts, Issues and Contentions, with annexed criminal history, dated 6 November 2020 (Exhibit R3).

1. The Applicant gave evidence in person at the hearing and was cross-examined. The Applicant's wife and his two older daughters, C and J, also gave evidence. The Applicant's wife and J were cross-examined. Their evidence was given by telephone. Attempts were made to call Rebecca Jones, who provided a report on J's mental condition, however, those attempts were unsuccessful. The statements tendered by the Applicant listed in [28] above were admitted into evidence with the consent of the Respondent.

1. Failure of the character test arises as a matter of law.[17] The character test is defined in

s 501(6) of the Act. Under s 501(6)(a) of the Act, a person will not pass the character test if the person has "a substantial criminal record". This phrase, in turn is defined, relevantly to this case, in ss 501(7)(c) and 501(7)(d) (see [16] above) which provide that a person will have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more or have been sentenced to two or more terms of imprisonment totalling 12 months or more. 2. The Applicant has been sentenced to a term of imprisonment in excess of 12 months as well as two or more sentences totalling more than 12 months. As a result, the Applicant has a substantial criminal record as defined in s 501(7) of the Act and, therefore, does not pass the character test.[18] The only issue for consideration is whether there is a reason to exercise the discretion to revoke the cancellation of the visa under s 501CA(4)(b)(ii) of the Act (see [17] above).

IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED? (SECTION 501CA(4)(B)(II))

First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 13(2)(a))

1. Paragraph 13.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:

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

(2) Decision-makers should also give consideration to:

1. The nature and seriousness of the non-citizen's conduct to date; and
2. 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 (paragraph 13.1(2)(a))

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

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

1. The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

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

1. The Applicant's offending falls into three broad categories:

(i) Driving related offences - speeding (X5), no licence (X11), failing to give way, reckless driving (X2), dangerous driving (X2), contravening temporary vehicle licence, portion of body protruding, failing to transfer vehicle, permitting person to drive vehicle contrary to work order, demerit points licence suspension, driving under the influence, driving with excess 0.08%, failing to stop when called upon, driving an unlicensed vehicle (X2), driving a vehicle or permitting vehicle to be driven with false number plates (X2) and failing to accompany police - a total of 34 convictions;

(ii) Public order related offences - stealing (X3), disorderly conduct (X9), disorderly obscene language (X3), resisting arrest (X4), common assault, threatening behaviour, damage, street drinking, hinder police and burglary and commit offence - a total of 25 convictions; and

(iii) Drug related offences - possession of cannabis (X2); possession of cannabis with intent to sell or supply, possession of prohibited plant, possession of prohibited drug with intent to sell or supply, possession of trafficable quantity of methylamphetamine with intent to sell or supply and possession of stolen property -[19] a total of 7 convictions.

1. Tribunals have repeatedly observed the seriousness of driving offences. Some of the more recent tribunal decision in which this issue has been considered are Gage and Minister for Home Affairs [2020] AATA 326 at [75]- [76] (Member Burford); SLNY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 344 at [43] (Senior Member Dr Evans-Bonner); Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 421 at [80]- [81] (Deputy President Boyle). In Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32 at [50], Senior Member Dr Evans-Bonner noted:

... Licensing rules are in place to ensure drivers are suitably qualified and responsible in order to protect innocent road users from harm. Additionally, as well as these types of licensing related offences, the Applicant also has convictions for driving under the influence of alcohol (2008), reckless driving (2008) and driving under the influence of an illicit drug (2014). Member Webb, in Apire and Minister for Immigration and Border Protection [2014] AATA 193 stated at [16] that "...driving a motor vehicle without a license while under the influence of alcohol is a serious matter that should not be trivialised or passed off too lightly."

1. At [51], Senior Member Dr Evans-Bonner then went on to cite the comments of Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 (Bartlett) at [43]-[45] which graphically encapsulate the serious nature and adverse consequences to the community of driving offences. This Tribunal agrees with and adopts those observations.
2. The Applicant sought to explain at the hearing that a number of his convictions for driving without a licence or driving while under suspension were the result of his not knowing that his licence had been suspended. The Applicant's evidence was that the licence suspensions were due to his having failed to make payments on outstanding fines. While this may explain some of the incidents of the Applicant driving while his licence was suspended, it does not explain the 11 times that this offence occurred. When taken to the police Statement of Material Facts for the offence committed on 11 November 2017,[20] which noted that when he was pulled over by police the Applicant had said that he knew that he had missed the fine payment, the Applicant argued that that did not necessarily mean that he knew that his licence had been suspended. The Applicant's evidence on this issue, as with some other aspects of his evidence, was not particularly satisfactory. The Applicant seemed more intent on arguing with counsel than answering the questions put to him. The Tribunal felt constrained at one point[21] to direct the Applicant to stop being aggressive and argumentative and to listen to and answer the question.
3. The Applicant was taken to the police Statement of Material Facts for the offence committed on 31 March 2016 which noted that when he was stopped by police he conceded that he "was aware that he was subject to a fine suspension".[22] While he initially conceded in cross-examination that he was aware that his licence was suspended as noted by the police at the time, his evidence then took a somewhat contradictory turn:[23]

COUNSEL: I can take you to that. It's at page 52. Your explanation there was - it says:

At the time of being stopped, the accused was aware that he was subject to a fine suspension.

APPLICANT: Yes.

COUNSEL: Yes. So you knew you were subject to a fine suspension on that occasion, didn't you?

APPLICANT: Yes.

COUNSEL: Yes. And you drove anyway?

APPLICANT: No. I didn't know I was subject to fines and - you don't know what day you're going to lose your license. It doesn't say, "You've lost your - you're going to lose your license on this day" when you're under fine enforcement. You could miss a payment and still have your license and just carrying on paying the payments next week. Or you could miss a payment and you lose your license.

...

TRIBUNAL: So, the statement there on page - have you got page 52 in front of you?

APPLICANT: Yes.

TRIBUNAL: That says:

At the time of being stopped, the accused was aware that he was subject to a fine suspension.

Are you saying that's not correct?

APPLICANT: I didn't agree with that, no. I wasn't aware that - I remember exactly where it was. It was on the side - it was near Yarloop on the - and I pulled up on the side of the highway when I was pulled over. And I got straight on the phone and got my license reinstated within 20 minutes. If I would have known I was under fine suspension, I would have done it before then to get my license reinstated.

1. The Tribunal finds that notwithstanding the Applicant's argumentative answers to the questions put to him on the issue of his having repeatedly driven while his licence was under suspension, that the Applicant repeatedly drove when he knew that his licence was under suspension.
2. The Applicant's driving record as a whole demonstrates an attitude of indifference to the law. This disregard for the laws relating to driving is somewhat curious for someone who says that he is a "car enthusiast"[24] and has been driving trucks "for the last 15 years".[25]

1. While none of the Applicant's offences falling into this category is particularly serious, the number of offences and their nature again evidence a disregard for the law and authority. The Tribunal accepts that the majority of these offences were committed some time ago with the last of these offences, the burglary and commit offence, being committed in January 2005.

1. The first of the Applicant's drug related offences was the 1994 convictions for possession of cannabis, for which the Applicant was fined $200, and possession of cannabis with intent to sell or supply, for which the Applicant was fined $3,000. The size of the fine for the conviction for possession with intent to sell or supply reflects the seriousness with which the Court considered that offence.
2. There were further drug related convictions in 1998 for possession of cannabis and in 2016 for possession of a prohibited plant. By far the most serious of the Applicant's convictions are those in 2019 for possession of a prohibited drug (methylamphetamine) with intent to sell or supply and possession of stolen or unlawfully obtained property for which the Applicant was sentenced to terms of imprisonment of 13 months and six months respectively, and the 2020 conviction for possession of a trafficable quantity of methylamphetamine with intent to sell or supply for which the Applicant received a term of imprisonment of five years and 10 months. The last conviction also resulted in the Applicant being declared a drug trafficker.
3. The circumstances of the offending which gave rise to the sentences in 2019 and 2020 are set out in the respective sentencing judges' remarks:

Count 1 relates to 6.92 grams in total of methylamphetamine at a purity of some 81 per cent. That's plainly a very high level of purity. I find beyond reasonable doubt that the money on count 2, $2150, was money from your past drug dealing. The maximum penalties are respectively 25 years imprisonment and seven years imprisonment. ...

Nor are you able to realistically contend for any remorse or insight given the fact that the matter was contested. There is a commercial aspect to your offending which aggravates the offence in respect of count 1 and makes it a serious drug offence. ...

And in your case, I'm quite satisfied that the purpose of selling at least some of the 6.92 grams would have been to finance the acquisition of further methylamphetamine for your heavy habit that plainly existed at that time. ...

And in assessing the seriousness of drug offences, the fact that the conduct on this particular occasion was not an isolated transaction, but part of a commercial drug dealing enterprise, in the sense that I've explained it to be, is a relevant circumstance that aggravates the seriousness of the offending. Circumstances which indicate previous drug dealing, the clipseal bags, the highly accurate digital scales, are relevant also as to whether and how much of the drugs were to be sold for profit, and the surrounding circumstances are also relevant to the weight to be given to personal deterrence. ...

I find that you were at the relevant time a street-level dealer in quantities of up to and including seven grams... in terms of the quantities you would dealt with, and you were a street-level dealer to fund a habit which, I am quite satisfied, you would have been completely incapable of sustaining unless you dealt in the same substance for profit.

I'm also quite satisfied that notwithstanding your evidence, you have not formed the view that you were going to go cold turkey and stop using methylamphetamine at that particular time. It's not necessary to make a precise finding as to how long you had been in the business of dealing methylamphetamine at that particular level for, but clearly the offence for which you have been convicted is not a one-off, isolated aberration.[26]

2020 conviction

You were, between June and early September 2018, an integral part of a drug distribution network that was being conducted by Shane Robins. At the time, you were addicted to methylamphetamine and you would peddle small amounts of methylamphetamine on behalf of Robins to enable you to finance your own addiction.

You would introduce customers to Mr Robins, or you would peddle drugs that had been provided to you on tick by Mr Robins and it is in that context that on 13 September 2018, you agreed to accompany Mr Robins to Perth, to obtain a significant quantity of drugs for Mr Robins. At the time, Mr Robins was the target of a police operation and there was interception of his mobile telephone services, and those of his girlfriend, and during the course of that, police came across your involvement in Robins' drug dealing activities.

And the telephone intercept product revealed the extent of your involvement in those activities. And so it was, on 13 September 2018, that your movements from Bunbury to Butler in the north suburbs of Perth, and back to Myalup - on your way back to Bunbury - were under constant police

surveillance. You accompanied Mr Robins in his vehicle. You were the passenger he drove. The vehicle stopped eventually in Northbridge and picked up a third man who, it would seem on all the evidence, was there to direct Robins and you to the house in Butler.

When the car reached the house in Butler, Robins and the third man went inside the house to collect the drugs, you remained outside. And then Mr Robins returned with the third man and, at the time, Mr Robins was carrying the Hungry Jack's cup in which there were five ounces of methylamphetamine. Unusually, each ounce weighed exactly 28 grams and was of a relatively high purity. Mr Robins then drove the third man to a location near Manning and dropped him off, and the two of you then proceeded south, where you were stopped at Myalup and the drugs were seized by police.

The gravity and seriousness of your offending, Mr Pokrywka, is reflected in the statutory maximum penalty, which is now life imprisonment for a trafficable quantity of methylamphetamine. That's how serious Parliament views this particular drug, which has caused so much misery and destruction in our community. There are aggravating features to your offending. ... Firstly, at the time of the commission of this offence, you were on bail for similar drug-related offending committed on 11 February 2018.

You are yet to stand trial on that, but you were on court bail for possession of methylamphetamine will intent to sell or supply it to another, and possession of stolen or unlawfully obtained property. It's clear - and I'm satisfied beyond reasonable doubt - that you were involved in this activity on 13 September 2018 for commercial gain. From all the evidence that I've heard in this case, it's clear that you would have got something out of the five ounces for your own purposes, to satisfy your own habit and it would save you putting in your own money, because the evidence revealed that you would peddle drugs on behalf of Mr Robins to fund your own habit and you had a raging habit at this point in time.

A further aggravating factor is the significant quantity of drug involved. Five ounces of methylamphetamine. And their purity is also a factor, because it meant the drug could be cut further and further, and spread further and further in the community. A further aggravating factor is that your actions were deliberate. It's clear from the phone call, you were so eager to assist this drug dealer.[27]

1. The Applicant, both in his SFIC and in his evidence at the hearing, sought to deny criminal involvement in the activities which resulted in his 2020 conviction for possession of a trafficable quantity of methylamphetamine with intent to sell or supply. In his SFIC the Applicant claimed that:

I was in the vehicle for fun. The drugs in question were not for me or Mr Robins, as I later found out. Mr Robins was picking them up to pay a bill he owed. In my trial, there was nothing pointing to my knowledge or involvement. There was no DNA evidence ...

I strongly dispute the way my trial was defended ... I have a sworn statement from Mr Robins stating, I had nothing to do with it. ...

... In saying this I no way deny the fact that I was in a vehicle while a crime was being conducted, of which it is and has been [sic] a hard lesson to learn, and will never again allow myself to be put in this position again.

1. At the hearing the Applicant was cross-examined on this offence as follows:[28]

COUNSEL: But you did deal methamphetamines for Mr Robins?

APPLICANT: I didn't deal so much for Mr Robins, I would get a little quantity off him, and use that to support my own habit, and sell as - sell it to pay for what I had got off him. Half the time I never paid for it because I used to smoke it all.

COUNSEL: You would also introduce customers to him?

APPLICANT: Yes, I would be lying if I said I hadn't introduced a couple of customers to him, but they were only idiots like me.

COUNSEL: And were they also low level drug dealers?

APPLICANT: I think they were just users.

COUNSEL: You accompanied Mr Robins to - is from Bunbury to Butler?

APPLICANT: Yes.

COUNSEL: - - - on that day that you were picked up?

APPLICANT: Yes.

COUNSEL: And then you went back to Myalup?

APPLICANT: We were heading back to Bunbury when we got picked up in Myalup, yes.

COUNSEL: Yes, and that's because Mr Robins was under police surveillance at the time, wasn't he?

APPLICANT: Yes, yes.

COUNSEL: And he was also - he had his phone tapped?

APPLICANT: Yes, yes.

COUSEL: And that's how the police knew that you had an involvement with him in dealing methamphetamines as well, wasn't it?

APPLICANT: I asked - yes, it was on record that I had asked for him to come see me so I could get stuff off him, yes.

COUNSEL: And that was in relation to that trip as well, wasn't it?

APPLICANT: No, not at all. I got a phone call from Shane Robins previously that night and he said to me, "Can you bring your caravan down to Bunbury for me tomorrow?" And he said - in that conversation he said that he was taking the GT for a run, and we had been working on his GT which is a 1968 Ford GT Falcon, and being a car enthusiast and that, I love any sort of that, and I pretty well invited myself to go with him for a drive in their car. Little did I know that he was picking up that quantity of drugs. I - I'm guilty of selling small quantities of gear, and I've openly admitted that. I had nothing whatsoever to do with that; I wasn't going to gain from it, monetary or any way.

COUNSEL: That's not what - - -?

APPLICANT: I'm guilty by being there when the crime was being - and, yes, you're right, that is not what the court said.

COUNSEL: Yes, because the court was satisfied beyond reasonable doubt that you had done the activity on 13 September for commercial gain, hadn't they?

APPLICANT: That's what it says in the transcript, yes. My - I will stand my ground today and still say I had no knowledge that that was going on, and I - and that is what this statement - this thing from Shane Robins was supposed to have been used for that day in court, but my lawyer said, "No, we won't use that, we're going to go with the fact, we're going to throw ourselves at the mercy of the court, tell them you're a drug addict, tell them the truth" which I did. I went in, I laid my cards down and told them I - that I was guilty of selling gear, and got found guilty. It was my own fault for being there, and, you know, I was there while the crime was being committed so I have to do the time, but I didn't organise it. I didn't have anything to do with it.

1. The Applicant was also cross-examined in relation to the 2019 convictions for possession of a prohibited drug (methylamphetamine) with intent to sell or supply and possession of stolen or unlawfully obtained property as follows:[29]

COUNSEL: At the time you were arrested on the second occasion, you also had a substantial amount of money on you that was found to be the proceeds of drug dealing?

APPLICANT: Really? Excuse me? I had money on me? That - on the second occasion?

COUNEL: On the first occasion, sorry?

APPLICANT: First - first occasion I had $2100.

COUNSEL: And that was from the sale of methamphetamines?

APPLICANT: No, it was actually from the sale of stuff that I had sold from my house because my house got foreclosed, and that's what I said in court.

COUNEL: Were you found guilty of that offence, being - - -?

APPLICANT: I was found guilty, yes.

1. The Tribunal does not accept the Applicant's claims that he was just "in the vehicle for fun" (see [45] above) when he was arrested in Mr Robins' car on 13 September 2018. The story is not only unbelievable, but it is contrary to the facts necessarily underlying the conviction and the specific findings made by Stone DCJ in sentencing the Applicant. His Honour found that the Applicant was "involved in this activity on 13 September 2018 for commercial gain" and that "[a] further aggravating factor is that [his] actions were deliberate. It's clear from the phone call, [he was] so eager to assist this drug dealer" (see [44] above).[30]
2. Similarly, the Applicant's denial that the money found on him at the time of his arrest for the offences committed on 11 February 2018 were the proceeds of the sale of drugs is contrary to Troy DCJ's specific finding, following a trial, that "... beyond reasonable doubt ... the money ... $2150, was money from your past drug dealing" (see [44] above). Even if the Tribunal were minded to accept the Applicant's evidence, which it does not, the Tribunal cannot go behind the verdict and the facts as found by the sentencing judge, certainly in relation to the conviction in relation to the offences committed in February 2018. The Applicant was found guilty of possession methylamphetamine with intent to sell or supply and possession of stolen or unlawfully obtained property. In sentencing the Applicant in February 2019 Troy DCJ found, beyond reasonable doubt, that money was the proceeds of past drug dealing.[31] As the Full Court of the Federal Court (McKerracher, Derrington and Colvin JJ) noted in HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121 (HZCP (FC)) at [79] per McKerracher J:

The Tribunal was correct in concluding that the evidence that the appellant sought to rely upon, by which he impugned the facts found by the sentencing judge, could not be entertained. The primary judge was correct in refusing the application on this ground.

1. Branson J in Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313, a case to which most of the subsequent authorities have referred with approval, considered the authorities as to how decision-makers should treat criminal convictions and elicited the following principles at 325-326:
   1. First, it seems to me to be clear beyond argument that the administrative decision-maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based ...
   2. Secondly, the overwhelming weight of authority is that where the conviction and sentence are the foundation of the exercise of the power vested in the applicant by s 200 of the Act, the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind either the conviction or the sentence ...
   3. Thirdly, although there is no absolute rule that the Tribunal may not consider material which challenges the grounds on which a prior conviction was based ... policy considerations suggest that the legislature intended that the Act, to the extent that it is concerned with the control in the public interest of the presence of non-citizens in Australia who have been convicted of criminal offences, should be administered in a way which:

(a) recognises that the criminal justice system is pre-eminently suited to the determination of the guilt of persons charged with criminal offences ... ; and

(b) limits inconsistency between decisions of the criminal courts and those of tribunals ...

As a consequence, in my view, the Act should be construed as requiring a decision maker under s 200 of the Act to treat a conviction and sentence (not being the conviction and sentence upon which the power to deport is based) as strong prima facie evidence of the facts upon which they are necessarily based so as to throw a heavy onus on a person who seeks to challenge such facts to show why they should not be accepted ... This heavy onus will, as a matter of logic, be more easily satisfied where the criminal conviction and sentence followed a plea of guilty than where the conviction and sentence follow a contested factual hearing.

1. Fourthly, although a decision maker under s 200 of the Act may, in a case in which the heavy onus on a person who seeks to challenge the facts essential to a criminal conviction and sentence (other than that on which the power to deport is based) is satisfied, accept evidence which contradicts such facts, he or she is not entitled to reach or express a view that the person was wrongly convicted ...
2. Fifthly, the above limitations on the matters to which a decision maker under

s 200 of the Act is entitled to have regard do not mean that the decision maker is not (subject to such limitations) to make his or her own assessment of the entirety of the conduct of the person whose deportation is under consideration, including the nature and seriousness of conduct which led to convictions and the significance of such conduct so far as the risk of recidivism is concerned.

1. In Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234 the Full Court noted:
   1. ... where the decision to be reached [by the Tribunal] depends upon there having been a sentence that satisfies s 201(c) of the Act, it is not open to the Tribunal to engage in any inquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.

1. ... It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting evidence. The policy must be that a conviction, and a sentence imposed as a result of that conviction, are matters for the criminal law and its procedures.
2. Bromberg J in HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 (HZCP) observed at [78]:

I would respectfully adopt the distillation of the case law described by Beach, McLeish and Niall JJA in LLF_.[32] On that basis the applicable principles are these:_

(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.

(2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.

1. A full analysis of the relevant authorities is set out in this Tribunal's decision in Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953 (Pattison) at [75]-[80].
2. Given that the Applicant's convictions for the February 2018 offences were the foundation of the exercise of the power to cancel the Applicant's visa under s 501(3A) of the Act, the Tribunal cannot, to use the words of Bromberg J in HZCP (see [52] above), "challenge... the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based" as the Applicant seeks. In any event the Tribunal does not accept the Applicant's evidence.
3. Although the conviction and sentencing for the offence committed in September 2018 was not the foundation for the exercise of the power to cancel the Applicant's visa, again the Tribunal does not accept the Applicant's story of simply being "in the vehicle for fun" and "... being there, and, you know, I was there while the crime was being committed so I have to do the time, but I didn't organise it. I didn't have anything to do with it" (see [46] above). Those claims, as with the Applicant's other excuses or explanations for offences of which he has been convicted, do not come anywhere near discharging the "heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based" as identified in Bromberg J's second category referred to in the passage cited at [52] above.
4. The Applicant's drug related convictions, in particular the most recent convictions for possession of methylamphetamine with intent to sell or supply and possession of a trafficable quantity of methylamphetamine with intent to sell or supply, are obviously the most serious. Despite the Applicant's attempts to downplay or deny these offences or his involvement in them, the fact is that he has been found guilty of two very serious crimes. In sentencing the Applicant in February 2019 for possession of methylamphetamine with intent to sell or supply, Troy DCJ found that the Applicant was "a street level dealer",[33] that the drug dealing for which he was convicted "was not an isolated transaction, but part of a commercial drug dealing enterprise"[34] and that "clearly the offence for which [he had] been convicted [was] not a one-off, isolated aberration".[35]
5. Similarly, in sentencing the Applicant in February 2020 on the very serious charge of possession of a trafficable quantity of methylamphetamine with intent to sell or supply, Stone DCJ found that the Applicant was, beyond reasonable doubt, involved in the drug dealing activities for "commercial gain", that he "would peddle drugs on behalf of Mr Robins", that he was "eager to assist this drug dealer"[36] and that he was "a fairly important cog in Mr Robins' distribution network" and "would introduce customers to him".[37] This second conviction, for which the Applicant received a term of imprisonment of five years and 10 months, also resulted in the Applicant being declared a drug trafficker.
6. In assessing the Applicant's history of offending and other conduct against the considerations identified in paragraph 13.1.1(1) of Direction 79, the Tribunal observes that:

(i) (paragraph 13.1.1(1)(a)) - the Applicant has several convictions for offences involving violence. These offences must be viewed very seriously, however, the Tribunal accepts that the last of these violent offences (the aggravated burglary and commit offence) occurred 15 years ago;

(ii) (paragraph 13.1.1(1)(b)) - the Applicant has no convictions for offences against women. The Tribunal does note, however, that a restraining order was issued for the protection of the Applicant's wife in January 2013[38] which appeared to be related to an incident between the Applicant and his wife in which, according to the police Detected Incident Report,[39] the Applicant grabbed his wife by the throat.

APPLICANT: [Applicant's wife] called the police, and when the police turned up she didn't want to talk to them.

COUNSEL: Well, when the police turned up it states in the police records that:

The two involved parties were at the address and an argument started between the two because the victim doesn't get any respect from the person of interest or his children. The argument has continued between the two, with the victim yelling at the person of interest to leave. The person of interest and victim continued arguing, and the victim claims that the person of interest has grabbed her by the throat.

APPLICANT: I said she didn't want to talk to police, I didn't say she didn't.

COUNSEL: Well, you would accept that on that occasion your wife told the police that you had grabbed her by the throat, didn't you?

APPLICANT: I accept that, and I accept that it says:

Police attempted to speak to the victim inside the house, who was immediately yelling and screaming at police and making no sense at all.[40]

The Applicant's wife conceded in cross-examination that she told police that the Applicant had grabbed her by the throat:

COUNSEL: Would you accept that you did tell police that?

WITNESS: Well, yes. If that's what is written down, I must have.[41]

The Tribunal finds that that incident did involve the Applicant grabbing his wife by the throat.

(iii) (paragraph 13.1.1(1)(c)) - it does not appear that the Applicant's offences have been committed against vulnerable members of the community, however, the 8 June 1988 assault conviction was for an unlawful assault on a police officer in the performance of his duties.[42] The Applicant's evidence was that this assault arose out of the same circumstances which gave rise to the resisting arrest conviction on 8 June 1988.[43]

(iv) (paragraph 13.1.1(1)(d)) - the sentences imposed by the courts have been significant. In sentencing the Applicant on the possession of a prohibited drug (methylamphetamine) with intent to sell or supply in February 2019, the court considered a term of imprisonment of 20 months as appropriate but reduced that to 13 months to account for the time in custody, with the conviction for possession of stolen or unlawfully obtained property attracting a sentence of six months. The sentence of five years and 10 months imposed by the court in February 2020 on the conviction for possession of a trafficable quantity of methylamphetamine with intent to sell or supply is substantial and clearly indicative of the Court's assessment of the seriousness of that offence.

(v) (paragraph 13.1.1(1)(e)) - the Applicant has committed a large number of offences (67 in all). It would be fair to say that the Applicant's early offending, particularly between 1987 and 1995 was frequent (52 offences in less than 10 years). There have, since 1998, been periods (1998-2005, 2005-2010 and 2010-2016) in which the Applicant did not offend. The rate of the Applicant's offending, however, appeared to pick up again from 2016 onwards with the most serious convictions being his most recent convictions. The Applicant's offending has been periodic, with three relatively significant periods in which he did not offend. Because the Applicant's most serious offences are those committed in 2018 for which he received sentences of imprisonment totalling seven years and five months there has been a trend of increasing seriousness.

(vi) (paragraph 13.1.1(1)(f)) - it is the case that the Applicant has committed a significant number of offences. The cumulative effect of the Applicant having committed so many offences over such an extended period is, in the Tribunal's view, demonstrative of the Applicant having little regard for the community, the law or authority.

(vii) (paragraph 13.1.1(1)(g)) - there is no evidence that the Applicant has provided false or misleading information to the Department.

(viii) (paragraph 13.1.1(1)(h)) - there is no evidence that the Applicant had received any formal warning.

(ix) (paragraph 13.1.1(1)(i)) - the Applicant has not been in immigration detention, so this consideration is not relevant in the present case.

1. Overall, the nature and seriousness of the Applicant's criminal offending, particularly the convictions for possession of methylamphetamine, in one case in a trafficable quantity, with intent to sell or supply, taking into account the factors identified in the applicable subparagraphs of 13.1.1(1), weigh heavily against the revocation of the cancellation of the Applicant's visa.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1(2)(b))

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

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

1. The Tribunal in CZCV and Minister for Home Affairs [2019] AATA 91 (CZCV) summarised the task for the Tribunal as follows at [56]:

In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):

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

1. In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, Justice Moshinsky stated, at [68]:

... there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.

1. The Tribunal agrees with and adopts the approach indicated in the above cases.

Nature of harm to individuals or the Australian community (13.1.2(1)(a))

1. The nature of the harm to individuals and to the community if the Applicant were to engage in criminal and other serious conduct which he has in the past, is obvious and serious. The harm caused by dealing in drugs, particularly methylamphetamine, and driving offences are not only significant for those who are the direct victims of these sorts of offences, but also for the broader community with increased policing, court, medical and correctional costs.
2. In relation to driving offences, particularly repeat offending like that of the Applicant, Senior Member Tavoularis noted in Bartlett at [45]:

The Applicant's driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users "go to the essential safety of the community". Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle - be it drinking and driving, driving without a licence, or driving an unregistered vehicle - can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.

(Footnote omitted.)

1. The above comments of Senior Member Tavoularis are applicable to the Applicant's behaviour.
2. The nature of the harm to individuals and to the community if the Applicant were to deal in drugs as he has in the past are even more obvious and serious. As Troy DCJ noted in sentencing the Applicant in February 2019:[44]

It is, of course, the case that when one deals with dangerous drugs of addiction, the problems that methylamphetamine cause in our community are notorious. It has almost wrecked your life and, of course, the persons to whom you would supply drugs would also be at risk of having their lives ruined, and the courts take offences involving dealing in methylamphetamine very seriously because it is such an appalling poison.

1. In sentencing the Applicant in February 2020 on the charge of possession of a trafficable quantity of methylamphetamine with intent to sell or supply, Stone DCJ noted:[45]

... I've also taken into account the fact that previous court sanctions have not curbed your drug dealing activities. So there's clearly a need for specific deterrence. And having regard to the misery that methylamphetamine causes, not only to the addicts, but the families of the addicts and the community generally, and to the destruction that it causes in this community by way of crime, and the fact that there are substantial rewards to be made in it for those who peddle that sort of poison, there's clearly a need for general deterrence.

1. In relation to the impact of drugs and dealing drugs generally, in Jacobs and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1524 (Jacobs) and subsequently in McCarthy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 2939 (McCarthy), this Tribunal adopted the summary of Lonsdale DCJ set out at [40] of the decision in Jacobs which included the following assessment:

It is the experience of these courts that illicit drugs cause or materially contribute to a very significant proportion of the criminal offences committed in this State.

And that is either as a result of users acting under the influence, or because of their need to finance or secure a supply of drugs. There are often strong financial incentives to deal in prohibited drugs. Further, significant public resources are devoted to the difficult task of detecting and apprehending persons involved in the supply and distribution of illicit drugs.

1. The Tribunal also refers to and adopts the observations of Member Eteuati in Lansdowne and Minister for Home Affairs [2019] AATA 2448 cited at [59] of Pattison.
2. The Respondent refers to the Federal Department of Prime Minister and Cabinet's 2015 Final Report of the National Ice Taskforce,[46] which observed that methylamphetamine creates a "distinct problem for society" because:

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.

The likelihood of the non-citizen engaging in further criminal or other serious conduct - risk of re-offending (13.1.2(1)(b))

1. The Applicant in his SFIC says that he is no risk of reoffending, that he has enrolled in courses, has attended narcotics anonymous and will undertake further rehabilitation in the three further years that he has to serve in prison before being eligible for parole.[47] He says that by the time that he is released he will have spent over five years alcohol and drug free.
2. The Respondent contended in his SFIC that limited weight should be given to the support that his family would provide because those supposed protective factors were present in the past when the Applicant offended. The Applicant in his SFIC responded as follows:

To say that any support that my family offers is of limited weight is both ludicrous and absurd. All my family cards are on the table now there are no secrets and everyone is in the picture of what has happened and all are on board and offer 100% support. I am sure that no one knew the extent of my addiction or even that I had one until it was too late.

1. In his statement the Applicant refers to his narcotics anonymous meetings and how they have given him a broad insight into the consequences and the impact of people's actions and the choices that they make and the impact on those around them.[48] He says that he has learnt "useful tools" to use in everyday life to prevent him going down the path that he has previously travelled. He says that while he has been in prison, he has seen people leave and come back and he does not want to do that. He says that "there is no way [he is] coming back" to prison.
2. The Applicant says that his judgment was severely clouded by his addiction but now that his "being clean and sober for the past two years has put both [his] life and [his] loved ones lives and wellbeing in perspective". He says that he is "truly sorry for [his] crimes and mistakes and will spend the rest of [his] day making up for them not only to [his] loved ones but to the greater community in general".
3. In a separate statement headed "[m]y plan to prevent my reoffending and my goals for the future" the Applicant says that he has cut his ties with those with whom he formerly mixed, including Mr Robins who was in the car with him when he was arrested in September 2018.[49] He reiterates his intention to continue attending narcotics anonymous meetings and also refers to counselling that he has been receiving from Father Brian Newing, coordinating chaplain of the Bunbury Prison. Father Newing provided a letter of support in which he expressed the opinion that "[the Applicant] has responded in a very positive way to the program [narcotics anonymous] and sees it as a way forward to stay free of drugs".[50] The Applicant says that amongst his goals are finding employment driving a truck and buying a family home.
4. At the hearing the Tribunal asked the Applicant how the Tribunal could be satisfied that the Applicant would not go back to using methylamphetamine. The Applicant's response was:[51]

The main - main reason that will keep me away from that and - is - is the damage that it has done to both myself, my family - and - and everything I've - I've lost and I've worked for all my life. I've got involved in that, and, you know, like, everything I worked for I've - I've got nothing to show for it. I'm sort of starting all over again. And then you've got the roll-on effect that - I've - I've for the last two years I've been doing Narcotics Anonymous, and just to see that the damage and - and the ripple effect that it is having on not - not just myself and my family, but the people around me and - and the community in general is just - it's a real eye-opener for me. I get it's a, you know - you - you've got your - when you take it you - you have your blinkers on. You - you - you think nothing is going to happen to you and everything is fine, you know, but - but it's not. ...

1. The Applicant's evidence was that he started using methylamphetamine around 2014. He was living with his wife (they were married in 2010) at the time that he started using methylamphetamine. His evidence was that:[52]

... the incentive to keep me off of it is what it has done to me and what it's doing to me now. You know, like, three years ago if you - if you had said to me, "You're going to be in the court, up in Federal Court fighting over one of the biggest fights of your life to stay in the country with your loved ones and your family and everything you know", I would have said, "You're joking. No, that's not going to happen". And look at me now. I'm here, you know, on my own, no lawyer, fighting for - for my life.

1. The Tribunal also asked the Applicant when he started using methylamphetamine and whether his wife, with whom that Applicant says he will live when he is released, knew that he was addicted to methylamphetamine:[53]

TRIBUNAL: You started taking meth in 2014. And you were arrested in 2018. Were you living with your wife through that period, from 2010 to 2018?

APPLICANT: In two thousand - I think in 2017 we - I took off for a little while.

TRIBUNAL: How long was that for?

APPLICANT: I'm not sure. We had a pretty rocky period there for a little while with my behaviour and addiction.

TRIBUNAL: So could you recall whether it was a matter of weeks or months?

APPLICANT: Yes. It would have been months. I stayed in Collie, but - yes - it was all over .....

TRIBUNAL: So at what stage did your wife become aware that you were using meth?

APPLICANT: When she ended up moving out and getting her own house, when, you know, it all fell apart, you know.

TRIBUNAL: Can you recall when that was?

APPLICANT: No, not really. It's sort of at the same time as I failed the drug test at work and before that.

TRIBUNAL: So that was around 2016?

APPLICANT: Yes. I failed that beforehand and - yes - subsequently lost my job in 2016, because of it.

...

TRIBUNAL: And did your wife try to - well, what was her attitude towards your taking meth?

APPLICANT: Basically, she wasn't too impressed with the whole situation, but she stuck by me .....

TRIBUNAL: And did she try to get you to give up meth?

APPLICANT: Yes. Yes. She didn't want me to - the day that I got arrested, she didn't even want me to go out that day. She said one minute I was there, the next minute I went out.

TRIBUNAL: Right. But what about in the period - you started in 2014. You were still living with your wife then. Or you were living with her for a couple of years up to her moving out. Did she try to - did she encourage you to get off meth at that stage?

APPLICANT: Yes.

1. The Applicant's wife's evidence on that issue was significantly at odds with that of the Applicant. Her evidence was:[54]

COUNSEL: We've also heard evidence that prior to being arrested in 2018, your husband had been taking methylamphetamine for a number of years. Do you recall when you found out that your husband was taking methylamphetamines?

WITNESS: No, I don't recall, but I think that's why we've had most of our problems.

COUNSEL: Your husband lost his job in approximately 2016 as a result of testing positive for methylamphetamines. Did you know about his methamphetamine use before this?

WITNESS: No, I didn't.

COUNSEL: Did you know about it once he lost his job?

WITNESS: No, I didn't.

COUNSEL: When did you find out that he was using methamphetamines?

WITNESS: When he went to jail.

COUNSEL: So is your evidence that the first time you found out your husband had been using methamphetamines was when he went to jail in September of 2018?

WITNESS: Yes.

1. The Applicant at the hearing continued with the theme that, while he asserts that he is remorseful for his past criminal behaviour, he, in effect, denies that he committed at least one of the serious drug offences of which he was convicted. His evidence was:

... I've been in two and a-half - well, since then, I've been drug-free and sober, you know, clear-headed, and it makes you realise what you take for granted, which is a bit - you know, in my case, it was a lot, my family and, you know, it's no excuse, but I never even knew about deportation law. I - you know, that doesn't give me a right to even think I can act the way I was. But, you know, I never knew what the consequences were. But, like I said, it doesn't give me the right to behave the way I did, and I - I've got no means to play down the way I acted either, you know. Like, I do dispute my second - the last charge. I - I'm guilty of being there while the crime was being committed and so, therefore, you know, I have to take what's coming to me, you know.[55]

...

I - I'm guilty of selling small quantities of gear, and I've openly admitted that. I had nothing whatsoever to do with that; I wasn't going to gain from it, monetary or any way.

... I'm guilty by being there when the crime was being - and, yes, you're right, that is not what the court said.[56]

1. The Tribunal then asked the Applicant about the courses that he had undertaken while in prison. The Applicant was taken to certificates that had been issued for the Peaceful Pathways basic workshop, conducted by Alternatives to Violence Project WA Inc[57] and the Certificate of Attendance at the Community Transition Program.[58] The Applicant's evidence on those programs was:[59]

TRIBUNAL: The Alternatives to Violence project, what was that course? How many sessions or - - -?

APPLICANT: It was - it was - it was full - full-day sessions over a period of - I think it was a month or six weeks. I can't recall. It - it wasn't -

...

TRIBUNAL: And what do you think? What did you learn from that?

APPLICANT: I - yes, I learnt - learn a bit, not as much as I would have thought I would have learnt from it. I think I - I - I - there was various talks that I did pick up from, you know, just to - you know, confrontation and alternatives to confrontation, you know, just not to - not - not retaliating and talking about - talking things through.

...

TRIBUNAL: And what about the community transition program which you did? ...

You did that from 7 August to 28 August?

APPLICANT: ... That was - yes, that was - it - it was basically just getting your house in order, teaching you resumés.

... There was a brief subject on counselling, but most of it was banking, resumés, etcetera, you know? ...

TRIBUNAL: So that's actually sort of - that's not addressing any behaviour; it's really trying to prepare you for reintroduction back into the community, for the...

APPLICANT: Yes, pretty well. ...

TRIBUNAL: Have you undertaken any formalised courses, though, addressing alcohol or narcotic addiction?

APPLICANT: Not at this stage, no. I intend to before release. I - like I said, I still have three years left and -

TRIBUNAL: And tell us about the Narcotics Anonymous you were involved with?

APPLICANT: Yes. It's led by a person called Father Brian. We attend every Wednesday and, yes, pretty well talk about our life experiences, and we - - - it's a group session. Sometimes Father Brian comes around during the week, you know. He will come, and he will just call in and sit down and have a chat with you one on one, which is pretty good. He's a good person, and, yes, he teaches a lot. Like, he says the first thing to staying sober is attending the meetings because, you know, as soon as you - he says as soon as you feel like you're going weak and all, whatever, find yourself a meeting and head to that.

1. The Tribunal also asked the Applicant whether he had taken drugs in prison. His answer was:

I have - I have not. ... I have had plenty of opportunities to do so, and I have not once. I am not interested in it.

1. In sentencing the Applicant in February 2020 on the conviction for possession of a trafficable quantity of methylamphetamine with intent to sell or supply, Stone DCJ said:[60]

In my view, the risk of re-offence by you in a similar way is high, unless you address your methamphetamine use.

1. The Applicant, in response to his Honour's comment said that he would not "touch that stuff or go near it again".
2. The Respondent contends that there is insufficient independent evidence before the Tribunal to demonstrate that the Applicant is rehabilitated.[61] The fact that he is not rehabilitated means that the risk of harm arising out of him reoffending is real. The Respondent contends that the following factors support that conclusion:

(a) The Applicant's own evidence was that he was addicted for years, the Applicant has not undertaken any targeted rehabilitative courses and the Applicant appears not to have a clear plan in place (in the event his visa is returned to him) with respect to ongoing therapy, treatment or other management for his drug addiction. The Tribunal has the Applicant's word that he is rehabilitated but little else.

(b) The offending in September 2018 occurred while the Applicant was on bail for the offences committed in February 2018 which ultimately led to the February 2019 convictions and sentences. The Applicant was either unable or unwilling to stop drug dealing despite facing serious criminal charges for that very conduct.

(c) Limited weight also should be placed on the Applicant's other character references as the support network did not prevent him from offending in the past and there is no compelling evidence to suggest that the same support would be any more effective in the future.

1. In closing submissions the Respondent's counsel also submitted that the Applicant has shown little genuine remorse for or acceptance of responsibility for his criminal behaviour. Counsel submitted that:[62]

COUNSEL: The applicant goes through and attempts to downplay the seriousness of each of the offences, which he - or many of the offences which he has been convicted of, blaming it on both the police or, in one instance, his sister for being stupid and calling the police, I think it is. He blames others for crimes that he has pled guilty to, such as stealing timber, for example. And this has continued - this pattern of a lack of insight or remorse has continued through to his most recent offending, in which, despite being found guilty by a jury and the judge noting that he was convinced beyond reasonable doubt that the applicant was involved in a commercial enterprise at the time of riding in the car in September of 2018, that he continues to deny any wrongdoing in respect of that.

This lack of insight was noted by the sentencing judge, as noted in the G documents. And we would also note what's referred to as - led by Stone J, Stone DCJ, as a lack of any mitigating factors to the applicant's offending as well. Now, the reason that the lack of insight and lack of remorse is relevant to this tribunal is, as the tribunal will have heard many times before, if a person does not have insight into their offending and shows no remorse for their offending, then they're more likely to reoffend. The applicant does not have any specialist evidence before the tribunal suggesting a different risk of reoffending. It's highly relevant in this respect that the applicant has been imprisoned eight times, and that has not stopped the applicant from offending. The applicant was - - -

TRIBUNAL: Well, he has only received three prison sentences, though, hasn't he?

COUNSEL: The applicant has received three prison sentences, but has been in Bunbury Prison as a result, as I understand it, of either not paying or choosing not to pay the fines ...

1. In relation to the risk of reoffending, the Applicant submitted in closing that:[63]

APPLICANT: I would like to just say that, and I don't know how many times I can say that without fear of repeating myself. But my family and my kids, my wife and my mum, my family, we're a close-knit family, and my only goal when I get out of jail is to spend that time making up for all of the mistakes I've made with them. I believe everyone is entitled to a second chance. I think Australians themselves would say - most Aussies believe that we're entitled to a second chance.

When Mr Burgess said that I had shown no remorse, I've been nothing but remorseful in my actions, but I have to give - I'm so remorseful, you know, like, for what I've done. Towards my family, I'm remorseful. And you know, this has been ongoing in my life for two years now, the whole stuff. You know, since I've been in jail for two and a half years, there hasn't been a day where I haven't showed remorse. There isn't a day where I don't feel bad for what I've done and the position I've put my family and myself in; most of all, my kids, you know. My - the people that rely on me. As you heard from my daughter [C], you know, it's been pretty hard for her for the last two years with me not being there. [A, the Applicant's youngest daughter]: she's got out of control, all because they haven't got the father figure there because I've messed up and put them in this position.

With the criminal record, I don't know whether I was advised wrong or ill-advised. I was of the idea that I had to give explanations for my criminal record. I was in no way playing my criminal record down. I thought I had to go through my criminal record and make explanations for what I had done. So I was not playing it down and making light of it at all. I realise the seriousness of my position and the consequences of my actions. And that could be that I never see my family again, because they're never going to be able to afford - - -

TRIBUNAL: I think the point - and it is of concern to the tribunal - the point that Mr Burgess was making is that even in your evidence today, you're still denying that you committed the offences.

APPLICANT: I - - -

TRIBUNAL: You certainly deny that you committed the offence - - -

APPLICANT: The trafficking.

TRIBUNAL: Yes. And, you know, you're saying, well, you just went for a ride in a Falcon GTO or whatever it was, and then you - - -

APPLICANT: I take full responsibility for my crimes. I was not at any time saying I didn't take responsibility for my crimes. Like, I was guilty, and, as soon as I knew what was going on, I should have got out of that car and had nothing whatsoever to do with it, and - - -

TRIBUNAL: Well, but the judge found more than that, didn't he? He found that you were an integral part of Mr Robins' empire.

APPLICANT: Because I used in my defence that I was selling drugs. I tried to come clean in my defence, and - - -

TRIBUNAL: The police had been listening. They were intercepting the phone calls.

APPLICANT: Yes.

TRIBUNAL: So the judge is making an informed comment there based on the evidence.

1. The above exchange between the Applicant and the Tribunal continued with the Tribunal explaining that it was bound to accept the sentencing judge's remarks and the verdict. The Applicant continued to maintain that he had simply gone along for a ride in a friend's car and that his only "crime" was not getting out of the car when he realised what was going on.
2. The Tribunal accepts the Respondent's contention that it should be of concern to the Tribunal in assessing the likelihood of the Applicant reoffending and successfully rehabilitating, that he continues to deny criminal involvement in the most serious of his convictions. The Tribunal also agrees with the Respondent's characterisation of the Applicant continuing to downplay, and, in some cases, deny, his past criminal behaviour.
3. The Tribunal accepts that the Applicant wanting to be close to his family, in particular his eight year-old daughter A with his wife and his other daughters, one of whom has significant psychological issues and the other has a child with autism, are factors which would discourage the Applicant from re-offending, however, these factors did not stop him offending in the past. The Tribunal is not satisfied that these same factors would prevent the Applicant from reverting to the type of offending which the Applicant has engaged in in the past.
4. While the Applicant has undertaken some programs while he has been incarcerated, those programs were not targeted at the Applicant's particular issue which, as the Applicant himself identifies, is his methylamphetamine addiction. Unfortunately, that may be a consequence of those sort of programs not being available to the Applicant because of his particular circumstances, but the fact is that, for whatever reason, the Applicant's drug addiction remains largely untreated. In that regard, the Tribunal notes that the Department of Justice Treatment Assessment Report performed on 21 May 2020,[64] applying the Risk of Reoffending - Prison Version assessment tool, assessed the Applicant's risk of general reoffending as low which resulted in the Applicant not being recommended for criminogenic programs. The Tribunal also notes that the Applicant has not tested positive to any banned substances while he has been in prison[65] and that his behaviour while in prison has been good.[66]
5. Notwithstanding the potential presence of factors which might militate against the Applicant reoffending when he is finally released, which, at the earliest, will not be for approximately another three years (assuming he is granted parole),[67] the Tribunal has major concerns. The first is that the Applicant, while claiming remorse and insight into the consequences of his offending, continues to deny any criminal responsibility for the most serious of his offences and even at the hearing, sought to downplay the criminality of his past conduct. The Applicant says that he has remorse for what he has done in the past, however, that, in the Tribunal's view, appears to be more the Applicant being sorry for himself for the situation that he now finds himself in as a result of his repeated and serious offending.
6. The second major concern that the Tribunal has in looking at the likelihood of the Applicant reoffending is that he will basically be going back into the same environment in which he committed his most serious offences. His current plan is to live with his wife and their daughter A, however, he was living, albeit on and off, with his wife when he became addicted to methylamphetamine and committed the crimes for which he is now imprisoned. His relationship with his wife leading up to his arrest was not particularly stable (see [79] above). It also appears that the Applicant has been less than frank with his wife about his drug issues and about his criminal activities. In her evidence the Applicant's wife repeated the Applicant's false assertion that all he did to be convicted of the most serious of his offences, possession of a trafficable quantity of methylamphetamine with intent to sell or supply, was go "for a drive with a bad man" (see [99]). It is also obviously of concern that from 2014 up to the time of the Applicant's arrest in 2018, during which time the Applicant was using and then addicted to methylamphetamine, the Applicant's wife was, according to her, not aware of him even using methylamphetamine let alone being addicted to it. The Applicant's wife also apparently has mental health issues of her own.[68] Accordingly, the Tribunal can have little confidence in the stability of the environment into which the Applicant would be going in three years from now when he is released from prison.
7. The Tribunal assesses the likelihood of the Applicant engaging in further criminal or other serious conduct as medium to high. This assessment, coupled with the serious nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal behaviour of the type that he has in the past, means that the primary consideration of the protection of the Australian community weighs heavily against the revocation of the cancellation of the visa.

Second primary consideration: The best interests of minor children in Australia (para 13(2)(b))

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

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

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

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

1. The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
2. The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

1. The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

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

1. The Applicant has two daughters, A and J, who are presently minor children. The older of those daughters, J, is 17 years old. She will turn 18 well before the Applicant's release from prison. Her interests as a minor will not be affected in a direct material way by whether the Applicant will be able to stay in Australia (i.e. whether his visa is reinstated or not) because by the time he is released from prison, which will not be until late 2023 at the earliest,[69] J will be over 18 years old. Having said that, however, for reasons addressed below (see [110]-[115]) the Tribunal does take into account the likely psychological impact that the decision, which will be made while J is still a minor, may have on J.

1. The Applicant's evidence in relation to his eight-year-old daughter A was that since his imprisonment her behaviour has deteriorated:[70]

... she has just gone downhill drastically. She swears a lot. She doesn't go to school. She's - which we - they get her to school every now and then. Like, her - her school attendance has suffered dramatically. Everything about her behaviour has suffered dramatically.

1. The Applicant's evidence was that his wife brought A to visit him in Bunbury Regional Prison "every weekend, when possible".[71] In her statement, the Applicant's wife said of their daughter:[72]

... [A] is currently seeking [counselling] due to the fact her dad spending the next 7yrs [sic] in jail. Isn't that enough punishment for this little girl who loves her dad and misses him every day. I ask you, how am I supposed to tell her that someone decided to send your dad to another country and you will never see him again, all because he went for a drive with a bad man.

1. It is a little difficult to work out exactly what role the Applicant played in A's life prior to his arrest in 2018. The Applicant's relationship with his wife was, as she described it, "on and off". Having stated that she did not know that the Applicant was taking methylamphetamine until he was arrested in 2018,[73] her evidence at the hearing was:[74]

TRIBUNAL: ... we heard evidence today that apparently you moved out of the house that you shared with your husband in around 2016. Is that correct?

WITNESS: I think it was before then, but yes, it's like, we had been on and off for three years.

TRIBUNAL: You were married in 2010?

WITNESS: Yes.

TRIBUNAL: Can you recall when the first time you moved out was?

WITNESS: I think it was 2013.

TRIBUNAL: Was [A] born then?

WITNESS: I think so.

TRIBUNAL: And how long did you move out of the house in 2013?

WITNESS: I can't remember.

TRIBUNAL: Was it a matter of weeks or months?

WITNESS: Probably weeks, but, yes, I can't really remember.

TRIBUNAL: Okay. How long - when you went back that time, how long did you stay living in the house?

WITNESS: I don't - I don't really know.

TRIBUNAL: But I think your evidence was you moved out a couple of times. Can you recall about - or how long after that time you moved out for the second time?

WITNESS: No, sorry, I can't. I think - I think when ..... started taking the drugs, he would just - we would fight all the time, so he used to always kick me out.

TRIBUNAL: Well, your evidence earlier though was that you didn't know he was taking drugs until he was sent to prison in 2018?

WITNESS: Yes, but we used to fight all the time, and it's obviously why now, isn't it?

TRIBUNAL: So you weren't aware that he was taking drugs?

WITNESS: No.

TRIBUNAL: Now, are you able to, even in general terms, - sorry, I will rewind that. In 2016 you moved out of the house. How long did you stay out of the house at that time?

WITNESS: Well, I moved out of the house and then I got my own place.

TRIBUNAL: And do you still - so you didn't go back after you got your own place in 2016?

WITNESS: No, because he lost it - he lost the house after that anyway.

... The bank took the house.

TRIBUNAL: But did you move back in with your husband into another house after that?

WITNESS: No, he moved in with me.

TRIBUNAL: Okay. But you did share a house after that?

WITNESS: Yes, not for long because then he got arrested and went to jail.

TRIBUNAL: But that was in 2018, so - - -?

WITNESS: Yes, and I got my house in 2017.

TRIBUNAL: Okay. And your husband moved back in when you got that house or - - -

WITNESS: Not until just before he got arrested I think.

...

TRIBUNAL: How long before that arrest do you think you and your husband lived together again?

WITNESS: Well, about ..... like a breach he had been home before he got arrested the second time.

...

TRIBUNBAL: And could you tell me how you think [A] would be better off if your husband was allowed to stay in Australia?

WITNESS: All [A] - like, I'm going through so much hassle with [A] because he's in jail, and she thinks he's coming home. She's - I'm having trouble with her at school. She's seeing a counsellor. She's - doesn't listen to me. She just - yes, she's a bit of a hassle at the moment, and I don't know what to tell her if this doesn't - well, if he doesn't come home. She's going to be devastated.

1. In further cross-examination following the above exchange, the Applicant's wife's evidence was as follows:[75]

COUNSEL: ... you said that you had been on and off for three years prior to your husband losing his house; is that right?

WITNESSS: Yes, and his job and that.

COUNSEL: And during that time when you were separated, did you stay - were you close with your husband still?

WITNESS: Yes, yes, like, if I needed him he would be there to help me.

COUNSEL: When you were - when he was arrested in February of 2018 were you close with him at that time?

WITNESS: No, we weren't talking at that time.

COUNSEL: Have there been many times when you haven't been talking?

WITNESS: No, not really. Not really, but he would just go off the road after a little bit there. I didn't know where he was or how to contact him, but, yes.

COUNSEL: And during that time [A] was living with you?

WITNESS: Yes, she has always been with me.

COUNSEL: And when you were on and off and your husband wasn't living with you [A] was still living with you?

WITNESS: Yes, but she does miss dad's visits still.

1. In re-examination by the Applicant, his wife's evidence was:[76]

APPLICANT: When we were on and off did [A] stay with you all the time, or did I have her? Did she come and stay for the weekends?

WITNESS: Yes.

APPLICANT: So I still had contact with [A] all the time?

WITNESS: Yes, you've always had contact with [A].

1. A letter was provided by the principal of A's primary school which advised that A's attendance has fallen each year since 2018 which has directly impacted her academic progress and that over the last two years she has displayed anxiety and reluctance to come to school.[77] She is being seen by a psychologist. The letter says that A has advised that she worries about her mother and enjoys seeing her father.
2. The Respondent's position is that if the Tribunal were to accept that A's best interests would be served by the Applicant remaining in Australia, that consideration does not outweigh the other primary considerations because:[78]

(a) A's mother fulfils the parental role and there is no suggestion that she is inadequate;[79]

(b) There is no independent evidence of the effect ongoing separation would have on the child;

(c) A has the ability to maintain contact in other ways;[80] and

(d) The Tribunal can have no confidence that the Applicant would play a positive role in A's life.

1. The Tribunal does have some reservations about whether the Applicant would play a positive parental role in respect of A given the Applicant's long criminal history and drug addiction and the apparently unstable relationship between the Applicant and A's mother for an extended period leading up to the Applicant's arrest in 2018, and the fact that the Applicant will spend at least further three years in gaol. Notwithstanding these reservations, the Tribunal accepts that there is a bond between A and the Applicant and that, on balance, A's best interests would be served by the Applicant remaining in Australia. In so finding the Tribunal is mindful of Article 3 of the United Nations Convention on the Rights of the Child and the preamble to that convention which states that "... for the full and harmonious development of his or her personality, [a child] should grow up in a family environment, in an atmosphere of happiness, love and understanding...". The obvious reservation is that given the disrupted family history of the Applicant and A's mother, there must be a question of how happy loving and understanding the family environment is likely to be. Notwithstanding that reservation, moderate weight should be given to this consideration in relation to this child.

1. The other minor child to which particular attention was given at the hearing is the Applicant's grandson who has autism (referred to herein as G). He is the oldest child of the Applicant's oldest daughter C who provided a statement and gave evidence at the hearing.[81] In her statement C advised that she has three children all of whom miss their grandfather. She says in her statement that the Applicant has "been a big part of [G's] life".
2. Her evidence at the hearing was:[82]

TRIBUNAL: How would you describe the relationship between your son and your father?

WITNESS: Very good, actually. Like [G] - doesn't - like, because of the autism, [G] doesn't, like, go to too many people. So there's not many people that can help with [G] or actually understand [G], like. They just bond and Dad's, like, the only one that can pick him up and stop him from yelling, and screaming and, like - it's very hard to explain. You would have to meet [G] to understand exactly how bad autism is and how, like - there's only, like, three people that can actually look after [G] and Dad is, like, one of them.

...

TRIBUNAL: And since your dad has been in prison, has anybody else been able to do some of the things that your dad did helping you, either with [child] or with other kids - the other kids, more generally?

WITNESS: No, it has actually been quite hard.

TRIBUNAL: ... And did your dad provide financial support for you as well?

WITNESS: Yes, and - yes, I couldn't repay my dad back how much money and stuff that he has done for us over the years.

1. C's evidence was that G's father, who is also the father of her other two children, has been in prison for most of the children's lives and effectively plays no role in their lives. Other than that there was little evidence of the role played by the Applicant in the lives of C's other two children. The Tribunal finds that the best interests of C's children, in particular the interests of G, would be served by the Applicant's visa cancellation being revoked. Moderate weight should be given to this consideration in respect of G and lesser weight in respect of the other two children.

1. The Applicant identified other minor children as being relevant to this consideration in his personal circumstances form[83] and in his SFIC.[84] In addition to C's children referred to above (see [106]-[108]) the Applicant also identified two other grandchildren being the children of his oldest son, although at the hearing he identified that son as having three children. The Tribunal assumes that the third child was born after the Applicant completed the personal circumstances form. These children live in Moora with their parents.[85] Little weight can be given to this consideration in relation these grandchildren as the role played by the Applicant is not parental and the children's parents fulfil the parenting roles.
2. The Applicant also identified five other children as nephews or nieces. At the hearing his evidence was:[86]

TRIBUNAL: And what about nephews and nieces; do you have any minor nieces and nephews?

APPLICANT: Yes, I do. ---I've got - I've got nieces that live up in Geraldton. They've got young kids as well. I haven't met them because they've just been born. And my younger sister has just had a baby, a little girl.

TRIBUNAL: Where does she live?

APPLICANT: In Perth, here.

TRIBUNAL: And that's the child you haven't seen?

APPLICANT: Yes, I haven't seen him - seen her yet, [name omitted].

...

TRIBUNAL: And so in relation to - we're only looking at minor children, so that's under 18 - your nephews and nieces, other than your sister's most recent child, are they all over 18 or under 18?

APPLICANT: No, they're all over 18, yes. Yes.

TRIBUNAL: And where they have kids, any relationship with their children, the younger ones, who presumably would be under 18?

APPLICANT: No. No.

TRIBUNAL: So if, looking at the children under 18, it's really [C's] three children?

APPLICANT: Yes.

TRIBUNAL: Your own daughter, and - - -?

APPLICANT: [J].

TRIBUNAL: Yes, and [J]?

APPLICANT: Yes.

1. In relation to the Applicant's 17-year-old daughter J, as mentioned above, while she will not be a minor child when the Applicant is released from prison, she will still be a minor child when the Tribunal makes a decision on whether the Applicant's visa cancellation is revoked or not. The Tribunal accepts that while its decision will not have any practical effect until the Applicant is released from prison and will, at that time, either be entitled to return to the community or will be required to leave Australia, the decision will have a psychological impact on J when it is made.
2. A report on the J's mental health was provided by Rebecca Jones, registered psychologist.[87] In that report Ms Jones opined:

[J] has severe mental illness that will require long term treatment. Her support network is limited yet it is a vital recovery tool and her father is a significant component.

As [J's] treating psychologist I have concerns for her wellbeing should her father be forced to leave Australia. In addition, due to [J's] limited financial resources and mental state I doubt she will have the ability to visit him in the UK should he be deported.

My parents split when I was very young and I remained mostly with my mother during my early childhood.

1. J's evidence at the hearing was that she last stayed with the Applicant when she was about 14 years old.[89] Her evidence was that when she was "really young", about "year one, year two age",[90] she would spend weekends with the Applicant when he was living in Binningup before he married in 2010 and moved to Collie. Her evidence also was that the Applicant had visited her since she moved to Manjimup and that she had visited him in prison on a couple of occasions. Transport was an issue with her being able to visit him more often.[91]
2. The Tribunal accepts that a decision not to revoke the cancellation of the Applicant's visa is likely to have an adverse impact on the mental health of J. Moderate weight should be given to this consideration.
3. Overall, the consideration of the best interests of minor children weighs in favour of the revocation of the cancellation of the Applicant's visa. In the Tribunal's assessment moderate weight should be given to this consideration in the weighing exercise.

Third primary consideration: Expectations of the Australian community (13(2)(c))

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

1. The Tribunal also refers to the principles and expectations set out in paragraph 6.3 of Direction 79 (see [23] above).
2. The proper construction of paragraph 13.3 of Direction 79 has been the subject of much judicial analysis. The starting point for most of the recent analysis was Justice Mortimer's decision in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY). The two approaches that emerged following her Honour's decision in YNQY were the so-called broad approach of the type taken by Griffiths J in DKXY v Minister for Home Affairs [2019] FCA 495 (DKXY) and the so-called narrow approach of the type taken by Perry J in FYBR v Minister for Home Affairs [2019] FCA 500 (FYBR) (for an analysis of those approaches see [99]-[114] of Pinder and Minister for Home Affairs [2019] AATA 1398).
3. That debate as to which approach is correct appears to have been resolved by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454 (FYBR (FC)). The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a "kind of deeming provision" - expressing "an expectation deemed by the government to be held by the Australian community".[92] A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [161]-[171] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424 (Rehman).[93]
4. Special leave was sought to appeal the decision in FYBR (FC). On 24 April 2020 the High Court (Kiefel CJ and Keane J) refused special leave.[94]
5. Stewart J in FYBR (FC) found:
   1. It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting "community expectations" then, in that sense, they might accurately be understood as "deeming" what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
   2. However, it is not to be expected that the Government of the day would seek, via the device of "community expectations" or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420-422; 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans (1981) 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; (2015) 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
   3. The above contextual factors lead to two guiding considerations to the proper construction of Direction 65_._ First_, "community expectations" as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different._ Second_, "community expectations" as expressed by the Government do not speak to the outcome in any particular case - they are to be understood and applied normatively._
6. Charlesworth J in FYBR (FC) also observed:
   1. Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen's conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.

1. ... The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) "generally" provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
2. Member Burford put it in Rehman as follows:
   1. It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government's view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or "deemed" in the Direction, they weigh against revocation with respect to "serious crimes".
   2. However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal's assessment of the totality of the relevant considerations including the primary and other considerations.
3. The Applicant has a long history of serious offending and has displayed a disregard for Australian laws and authority. Having regard to the provisions of paragraphs 6.3 and 13.3(1) of Direction 79, the Applicant's very serious history of offending and the serious nature of his most recent crimes, possession of methylamphetamine with intent to sell or supply and the fact that the Applicant has been declared a drug trafficker, the Australian community would expect that the Applicant is not given the privilege of holding an Australian visa. This consideration weighs against the revocation of the cancellation of the Applicant's visa.

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

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

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

International non-refoulement obligations (14(1)(a))

1. The Applicant is a citizen of the United Kingdom. There are no non-refoulement obligations owed by Australia to the Applicant. This is not a relevant consideration in this matter.

Strength, nature and duration of ties (14(1)(b))

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

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

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

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

1. The Applicant arrived in Australia in December 1981 at the age of 12. The Applicant therefore arrived as a child and the Tribunal gives weight to that fact and to the fact that the Applicant has lived in Australia for 39 of his nearly 51 years.[95]
2. The Applicant has contributed positively to the Australian community through his employment, firstly as a machine operator (sawmills), then as a truck driver, then as a miner and then, finally, again as a truck driver.[96] The Tribunal gives more weight to this consideration in recognition of that contribution.[97]
3. The Tribunal also accepts that the Applicant's family and social links are in Australia with Australian citizens. The Applicant's immediate family, his mother, father, sisters (and their children) and his own children (and their children) are Australian citizens or permanent residents.[98] The Applicant also has cousins, uncles and aunties in Australia.[99] The Tribunal accepts that the Applicant being forced to leave Australia would have an emotional impact on his family and friends.
4. In her statement the Applicant's mother says that the Applicant plays a big role in the lives of his children and grandchildren and that she and the Applicant's father "rely on him as [they] are getting older".[100] She says that her husband has a bad back and that the Applicant helps with chores around their house. The Applicant being deported would obviously deny the Applicant's parents this help.
5. The Tribunal also accepts that the Applicant's deportation would have an impact on his wife. In her statement the Applicant's wife described the Applicant as having been her "Rock" who has always provided her, and their daughter, with support.[101] That statement is, however, somewhat tempered by her own evidence at the hearing, and the evidence of the Applicant, that their relationship had been, as she put it "on and off" (see [100]-[101] above), certainly since 2014 when, unknown to the his wife, he started using methylamphetamine. The Tribunal accepts that the Applicant's wife and their child A will be impacted if his visa remains cancelled both emotionally and potentially financially.
6. The Tribunal is also mindful of the impact that the removal of the Applicant is likely to have on the Applicant's daughter J (see [111] and [114] above), both emotionally and potentially financially, and the impact on the Applicant's daughter C and on her child with autism. That impact, however, can be somewhat ameliorated by the fact that the Applicant's removal, if it were to occur, would only occur around late 2023 at the earliest, so there would be time to prepare and to put arrangements in place to lessen its impact.
7. The Tribunal finds that this consideration weighs in favour of revocation of the cancellation of the Applicant's visa. Moderate weight should be given to this consideration.

Impact on Australian business interests (14(1)(c))

1. This consideration has no application in the present matter.

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

1. The Respondent, correctly, noted that there was no evidence before the Tribunal as to the impact of a decision not to revoke on victims and that "the factor is therefore neutral".[102] While that is the case with regard to victims, as this Tribunal noted in Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4171 at [109]- [111], although paragraph 14(1)(d) and the heading to paragraph 14.4 refer only to impact on victims, paragraph 14.4(1) requires consideration of the impact of a decision not to revoke the cancellation of the visa on members of the community including victims (emphasis added).
2. This Tribunal has also previously commented on the requirement of paragraph 14.4(1) to consider the impact of a decision not to revoke the cancellation, that is a decision that would see the non-citizen removed from Australia and how such a decision would impact a non-citizen's victims, who would, presumably, be in Australia.[103]
3. Insofar as a consideration broader than the impact on victims is required, then one aspect of the possible impact of the Applicant being permitted to stay (i.e. a decision to revoke the cancellation) has been dealt with under the first primary consideration, the protection of the Australian community. An aspect of the impact of the Applicant's removal (i.e. a decision not to revoke) has been considered above under the heading of strength, nature and duration of ties under paragraph 14(1)(b) and 14.2 of Direction 79. Insofar as the impact on those members of the Australian community is to be considered, then the Tribunal has done so under the above headings.

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

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

1. The Applicant's SFIC did not address this consideration. In his personal circumstances form the Applicant in the section "Impediments to Return" identified "blood pressure meds" as the only medical or psychological issue relevant and, in response to the questions about concerns that he has to returning to the United Kingdom and problems he would face, advised that he would be without his family and would be alone.[104]
2. In response to the Tribunal's question at the hearing as to whether there were any health impediments to the Applicant working in the United Kingdom, the Applicant advised that there were none[105] and in cross-examination agreed that there was no reason why he would not be able to obtain a drivers licence in the United Kingdom.[106]
3. While separation from his family will undoubtedly cause the Applicant emotional hardship, that is not an impediment of the type to be considered under this paragraph of the Direction. Direction 79 requires the Tribunal to consider impediments in the Applicant establishing and maintaining basic living standards, in the context of what is generally available to citizens of the United Kingdom, taking into account his age and health, language and cultural barriers and the medical and social and/or economic supports available.

Clearly there are no language or cultural barriers and the Applicant does not contend that there are. The Applicant does not contend, and there is no evidence that he would not be entitled to the same social, medical and/or economic support available to other citizens of the United Kingdom. 4. In the end there is no reason to believe, and certainly no evidence was presented by the Applicant to support a claim, that he would not be able to establish himself and maintain basic living standards (in the context of what is generally available to other citizens of the United Kingdom). This consideration weighs against revocation of the cancellation of the Applicant's visa.

1. Guidance is given by Direction 79 as to how the decision maker should apply the primary and other considerations. Paragraphs 8(3) to (5) of Direction 79 are relevant. They provide:

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

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

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

1. A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65, the same considerations apply to the exercise required by Direction 79 which is materially in the same terms. The Tribunal is guided by Colvin J's judgment in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545 and the Full Court of the Federal Court decision in Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
2. The Tribunal in CZCV at [164] summarised the legal position following the various cases referred to above as follows:

Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word "secondary" tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. ...

1. This Tribunal agrees with the approach directed by the above cases.
2. Looking at the first primary consideration, the protection of the Australian community,

the relevant consideration is whether the risk is an unacceptable one taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the behaviour and the likelihood of that occurring. For the reasons set out above, the Tribunal assesses the likelihood of the Applicant engaging in further criminal or other serious conduct as medium to high. That assessment, coupled with the serious nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal behaviour of the type that he has in the past, particularly dealing in methylamphetamine, means that the primary consideration of the protection of the Australian community weighs heavily against the revocation of the cancellation of the visa. 3. The Tribunal finds that the second primary consideration, the best interests of minor children, in this case particularly the best interests of his youngest daughter A, his grandchild with autism and his daughter J, would be served by revocation of the cancellation of the Applicant's visa. Moderate weight should be given to this consideration. 4. The third primary consideration, the expectations of the Australian community,

weighs against the revocation of the cancellation of the Applicant's visa. 5. In relation to the "other considerations" identified in Direction 79, the consideration of strength, nature and duration of the ties that the Applicant has to Australia,[107] weighs in favour of the revocation of the cancellation of the visa. For the reasons set out earlier in this decision moderate weight should be given to this consideration. 6. The consideration of the impediments that the Applicant would face if he is returned to the United Kingdom, weigh against revocation of the cancellation of the visa.[108] 7. Having undertaken the weighing of the consideration for and against the revocation of the cancelation of the Applicant's visa, the Tribunal finds that the considerations which weigh against the revocation of the cancellation of the visa, in particular the first primary consideration; the protection of the Australian community, outweigh the considerations which weigh in favour of the revocation of the cancellation of the Applicant's visa. Accordingly, the Tribunal finds that there is not another reason why the original decision should be revoked.

1. The decision of the delegate of the Respondent dated 1 October 2020 to not revoke the mandatory cancellation of the Applicant's Class BB Subclass 155 - Five Year Resident Return visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.

I certify that the preceding 156 (one hundred and fifty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

......[Sgd]..................................................................

$75 fine; motor driver's licence disqualified for 3 months (concurrent)

$150 fine; motor driver's licence disqualified for 6 months

Traffic offences - contravene temporary vehicle licence

$200 fine; motor driver's licence disqualified for 9 months (cumulative)

Traffic offences - permit person to drive contrary to work order

Probation for 12 months; 80 hours community service order

$500 fine; motor driver's licence disqualified for 12 months

$500 fine; motor driver's licence disqualified for 12 months (cumulative)

$500 fine; motor driver's licence disqualified for 12 months (concurrent)

$600 fine; motor driver's licence cancelled; disqualified from holding or obtaining a driver's license for a period of 6 months (prescribed)

30 March 1994 (reckless) penalty amended to $500 fine and 6 months disqualification to $500 fine and 18 months disqualification (concurrent)

$500 fine; motor driver's licence cancelled; disqualified from holding or obtaining a driver's licence for a period of 18 months (cumulative); (previously prescribed)

$500 fine; motor driver's licence cancelled; disqualified from holding a motor driver's licence for a period of 18 months (concurrent); (previously prescribed)

Exceed speed limit in a speed zone by not more than 9km/h

Drove or permitted a vehicle with false plate to be driven

$300 fine; Motor driver's licence disqualified for 3 months (concurrent)

Possession of stolen or unlawfully obtained property

6 months imprisonment (concurrent from 8 February 2019)

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

13 months imprisonment (concurrent from 8 February 2019)

Possessed a trafficable quantity of methylamphetamine with intent to sell or supply it to another

Drug Trafficker Declaration: start date: 28 February 2020; 5 years and 10 months imprisonment (cumulative from 28 February 2020)

[8] Sections 501(6)(a) and 501(7)(c) of the Act; R1, G21/76-81.

[17] Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at [63].

[19] $2,150 found to be proceeds of drug dealing; see Judge's sentencing comments, R1, G11/43.

[32] The case to which his Honour refers is Secretary to the Department of Justice and Regulation v LLF [2018] VSCA 155.

[66] see Classification Review; R2 /179.

[68] Applicant's evidence: transcript at 78 and report by psychologist Robert Haywood (A6).

[92] FYBR (FC) at [80] and [61] per Charlesworth J; see also Stewart J at [89].

[93] See also decision of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445 at [77]- [78].

[94] Transcript of Proceedings, FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56.

[96] R1, G14/67; transcript at 25-26; statements of work colleagues A14 and R1, G18.

[103] see McCarthy at [120] and the cases referred to therein.