Tahuriorangi and Minister for Immigration and Border Protection (Migration) [2018] AATA 2158 (10 July 2018)

1. The issue I must consider is whether, in the circumstances of this case, the discretion in

s 501CA(4) of the Act should be exercised in favour of revoking the mandatory cancellation of the Applicant's visa. 2. When making a decision on whether to exercise the revocation discretion in s 501CA(4) of the Act, there are two issues a decision maker must consider: * (i) whether the Applicant passes the "Character Test" as defined in s 501 of the Act; and * (ii) whether there is another reason why the mandatory cancellation decision should be revoked. 3. The Minister contends that the Applicant does not pass the character test and that there is not another reason to exercise the discretion to revoke the mandatory visa cancellation decision. Therefore, according to the Minister, the correct and preferable decision is to not revoke the mandatory cancellation of the Applicant's visa.[8] 4. I will consider each of these issues in turn.

ISSUE 1: DOES THE APPLICANT PASS THE CHARACTER TEST?

1. It does not seem to be contentious that the Applicant does not pass the character test. For the sake of completeness, I will briefly address this issue.

1. At the hearing, the Applicant agreed that his offending was very serious. His offending can be divided into four separate categories. They comprise (1) drug offences; (2) driving/ traffic offences; (3) domestic violence offending; and (4) a single offence of public nuisance committed on 4 June 2011.

1. The Applicant's drug offences are set out in the National Police Certificate.[9] This offending may be summarised thus:
   • 10 October 2016 - Queensland Supreme Court - for the following offences:
     • trafficking in dangerous drugs - sentenced to five years' imprisonment - suspended for five years after serving 20 months - served concurrently with following offences (relating to an offending period of between 30 April 2015 and 8 September 2015);
     • possessing dangerous drugs - comprising a Schedule 1 drug quantity of or exceeding the allowable amount pursuant to Schedule 4 of the Drugs Misuse Act 1986 (Qld) - sentenced to three years imprisonment, suspended for five years after serving 20 months, to be served concurrently with his other sentences for the drug offences - date of offence 7 September 2015;
     • possessing dangerous drugs - comprising a Schedule 1 drug quantity of or exceeding the allowable amount pursuant to Schedule 3, but less than Schedule 4 of the Drugs Misuse Act 1986 (Qld) and receiving or possessing property obtained from trafficking or supplying dangerous drugs - sentenced to two years imprisonment, suspended for five years after serving 20 months, to be served concurrently with his other sentences for the drug offences - date of offence 7 September 2015;
     • possessing dangerous drugs - possessing dangerous drugs and anything for use in the commission of a crime as defined in Part 2 of the Drugs Misuse Act 1986 (Qld) - sentenced to six months imprisonment, to be served concurrently with his other sentences for the drug offences - date of offence 7 September 2015;
     • supplying dangerous drugs - conviction recorded, not further punished, 'serious drug offence certificate' issued in relation to: receiving or possessing property obtained from trafficking or supplying dangerous drugs - date of offences 7 September 2015.

• 23 January 2008 - driving a motor vehicle whilst unlicensed;[10]
• 6 November 2010 - driving a motor vehicle whilst disqualified or restricted from driving;[11]
• 4 September 2014 - high-end speeding - that is, exceeding the speed limit by 40km/h or more.[12]

• 16 July 2014 - for domestic violence committed by the Applicant upon his former wife.[13] This protection order remained effective to 16 July 2016.[14]

21 June 2011 - Brisbane Magistrates Court - committing a public nuisance on 4 June 2011 - Summary Offences Act 2005 (Qld)- no conviction recorded and fined the sum $400;

1. The character test is defined in s 501(6) of the Act. It provides a number of circumstances in which someone will not pass the "character test". Most relevant here is s 501(6)(a), under which a person does not pass the "character test" if they have a "substantial criminal record" as defined in s 501(7). According to s 501(7)(c), a person has a "substantial criminal record" if they have been sentenced to a term of imprisonment of 12 months or more. The wording of that provision is clear: it relates to the sentence imposed by a Court, not the amount of time a person has actually served.
2. Having regard to his criminal history, it is clear the Applicant has been sentenced to more than 12 months imprisonment. There is no doubt the Applicant has a "substantial criminal history" within the meaning of s 501(7)(c) of the Act, and as such, he does not pass the character test.
3. Therefore, the Applicant cannot avail himself of this ground to revoke the mandatory cancellation of his visa.
4. I must therefore move on to the next question: whether there is another reason why the discretion under s 501CA(4) of the Act, to revoke the mandatory cancellation of the Applicant's visa, should be exercised.

ISSUE 2: IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?

1. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 65 ("the Direction") applies. The Direction provides guidance for decision makers on how to exercise the discretion. Relevantly, it states that a decision-maker:

must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen's visa will be revoked.[15]

1. The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three primary considerations that the Tribunal must take into account:
   • (a) Protection of the Australian community from criminal or other serious conduct;
   • (b) The best interests of minor children in Australia; and
   • (c) Expectations of the Australian community.
2. Paragraph 8(1) of the Direction provides that decision makers must take into account the primary and other considerations relevant to the individual case.
3. The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
   • (a) International non-refoulement obligations;
   • (b) Strength, nature and duration of ties;
   • (c) Impact on Australian business interests;
   • (d) Impact on victims; and
   • (e) Extent of impediments if removed.
4. Paragraph 6.3 of the Direction sets out at a number of principles that should inform the decision maker's consideration. Briefly stated, they are as follows:
   1. Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
   2. The 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... should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia.
   4. In some circumstances, the criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any future risk of similar conduct in the future is unacceptable... 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.
   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 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 for determining whether that non-citizen's visa should be cancelled, or their visa application refused.

Primary Consideration A: Protection of the Australian Community from Criminal or Other Serious Conduct.

1. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that decision makers should also give consideration to:
   • (a) The nature and seriousness of the non-citizen's conduct to date; and
   • (b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

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

1. When assessing the nature and seriousness of a non-citizen's criminal offending or other conduct to date, paragraph 13.1.1 of the Direction specifies that decision makers must have regard to a number of factors. Relevantly (for present purposes), amongst those factors are: violent crimes are viewed seriously; the sentence imposed by the courts for a crime or crimes; the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness; and the cumulative effect of repeated offending.
2. In reaching a considered assessment of the nature and seriousness of the Applicant's conduct it is necessary to elaborate on the abovementioned factors.

1. The pattern of the Applicant's offending does not disclose a tendency towards sexually-derived conduct nor can it be said that his conduct is consistently violent or dismissive of the personal rights of others.
2. The Applicant's domestic violence history should also be taken into account. As mentioned earlier, a protection order was put in place from mid-2014 to mid-2016. The circumstances of his domestic violence offending is, to put it mildly, disturbing. As I understood his evidence, things were not going well on the domestic front between him and his former wife. He took it upon himself to try and resolve matters late one night after he had been out drinking. Their approximately 2 year old daughter was sleeping with her mother. An apparently heated discussion ensued between the Applicant and his former wife whereupon he struck her with a closed fist on the nose. This caused her to go to hospital, with a suspected broken nose.
3. The Applicant's explanation of the incident at the hearing was not convincing. As I understood his evidence, he sought to ameliorate the seriousness of the incident by somehow taking issue with whether he actually struck her or more intended to push her away. The fact he hit her with a closed fit undermines this contention. Even if that were not the case, whichever of these two intentions may have been in his mind, two things starkly stand out from this conduct: (1) he struck her with sufficient force to cause a suspected broken nose; and (2) he did this while their two year old daughter was present in the immediate vicinity - that is, on the same bed on which he struck the former wife. The Tribunal has previously highlighted the seriousness of this type of offending - albeit in a citizenship case - in the matter of Ahori and Minister for Immigration and Border Protection [2017] AATA 601, saying:

Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed. The implications of such violence on the children, broader family and friends of the parties involved can be serious and long lasting.[16]

1. While apparently a one-off incident, I nevertheless consider this offending to be of a very serious nature, both due to the harm the Applicant occasioned to his former wife, and due to its occurring in a domestic setting in very close proximity to the Applicant's child.

1. It is undeniable that sentences involving terms of imprisonment are the final resort in the sentencing hierarchy. The Applicant's history in this regard is impressive. There are four sentences of imprisonment deriving from his involvement in unlawful drug activity. In all, he was sentenced to a cumulative custodial term of 10.5 years for these offences. This comprises the sum of the five-year, three-year, two-year and the six-month terms of imprisonment imposed upon the Applicant. While the collective sentences imposed upon the Applicant were (1) to be served concurrently; and (2) suspended for all but 20 months, that does not detract from their seriousness. The nature of the custodial terms imposed clearly reflects the seriousness of the offences he has committed.
2. His criminal history, while not necessarily long, nevertheless indicates a sentencing regime which makes it clear that the sentencing judge had no doubt about the severity of the Applicant's unlawful conduct.
3. In sentencing, Boddice J initially noted:

...you are to be sentenced today on one count of trafficking in a dangerous drug, one count of supplying a dangerous drug, one count of possessing a dangerous drug in excess of 200 grams, one count of possessing a dangerous drug in excess of 2 grams, one count of possessing a dangerous drug, one count of receiving property obtained from supplying, and one count of possessing a thing for use in connection with supplying a dangerous drug. To your credit, you pleaded guilty for those offences when arraigned before me today.[17]

1. Boddice J referred to the large quantities of drugs, some money and paraphernalia found in the possession of the Applicant by the police and said:

I do not accept they were for your own personal use... I am satisfied you've had those drugs for a commercial purpose... It is clear from the sheer quantity of cash that was found in your car when the police intercepted you that it was a very significant operation. They are serious aspects of your trafficking... In total there was 481 grams of pure methylamphetamine in a total amount of 700 grams of the substance. That is a huge quantity of methylamphetamine in circumstances where the purity was very high indeed. I consider that to be a serious instance of possession of the drug methylamphetamine... In total, some 11.657 grams pure MDMA was found in respect of a total substance of a little under 70 grams.[18]

1. Further, with regard to formulating an approach towards a sentencing regime, the learned sentencing Judge said:

The consideration of the offending as a whole indicates that your involvement in drugs was a little more than just as a courier and a runner. The quantity of methylamphetamines in particular indicates that you were part of a substantial network whereby you had access to high purity drugs in circumstances where, as I have indicated, I am not satisfied it was for your own personal use. The sheer quantity of the drugs together with the circumstances in which they were found and the other items are entirely consistent with your having possession of those drugs for a commercial purpose.[19]

1. It seems quite clear to me that both the sentencing remarks of Boddice J manifesting in the sentencing regime imposed on the Applicant can only serve to illustrate the seriousness of this Applicant's drug offending.

Frequency of offending and increasing seriousness

1. Taken chronologically, his earliest offences comprise: (1) unlicensed driving in 2008, (2) driving whilst disqualified in 2010 and (3) public nuisance in 2011. These offences were committed while the Applicant was aged 19-22 years. I am prepared to give him the benefit of the doubt and to attribute this offending to the vagaries of miscreant youth with its often attendant irresponsibility and carelessness.
2. Thereafter, the severity of the conduct dramatically escalates. In July 2014, the Applicant committed a serious act of domestic violence. In September 2014, the Applicant had control of a motor vehicle and caused it to be travelling at a speed in excess of 40km/h over the allocated speed limit. He was 25 years of age when the offence was committed and can no longer be regarded as a youth. More telling for present purposes is a theme that seems to repeat itself as a causal factor behind his later offending - that is, difficulties that arise in his life which he tries to resolve but, in so doing, takes certain paths that result in quite serious offending. In his evidence, the Applicant said he was travelling at 40km above the speed limit due to some kind of domestic trouble or disagreement that he wanted to 'put right' with his former wife. This, of course, cannot in any way, be regarded as a sufficiently justifiable or emergent reason for high-end speeding which endangers not only his own life but the lives of others.
3. His further evidence at the hearing was that due to a combination of emotional pressure arising from difficulties in his domestic relationship and financial stricture affecting his household, the Applicant again sought to put things right. This time, however, he was lured by the idea of fast and easy money that he thought he could combine with the party lifestyle he had taken on following the breakdown of his domestic relationship.
4. Of concern to me is not so much the fact that he decided to abandon his domestic responsibilities in favour of a partying and nightclubbing lifestyle. He seems to have embraced that lifestyle with some zest, becoming involved in its peripheral activities - illegal drugs and the abuse of alcohol. The Applicant is not the first and will certainly not be the last person to be seduced by the false charms and ultimate futility of that lifestyle. He claimed this was the case with his later offending.
5. The difficulty for the Applicant, for the purposes of this application, is that he knowingly caused himself to become immersed, not just in a drug culture, but as Boddice J described, a sophisticated and commercially oriented drug trafficking, supply and possession enterprise where his role was much more significant than a mere footsoldier or delivery person. The totality of these charges is worth repeating here: (a) trafficking in dangerous drugs; (b) supplying dangerous drugs; (c) possessing a dangerous drug in excess of 200 grams; (d) possessing a dangerous drug in excess of 2 grams; (e) receiving property obtained from supplying and (f) possessing a thing for use in connection with supplying a dangerous drug. For these offences he was sentenced to a cumulative custodial period of 10.5 years. At the time of his sentencing (October 2016) the Applicant had been in Australia for less than 20 years. Yet his offending had caused him to incur a cumulative custodial term well in excess of half of his total time in this country. I note, however, that the Applicant was sentenced to serve these terms of imprisonment concurrently. Even just by looking at the Applicant's head sentence - five years' imprisonment - his actions were sufficiently severe for him to be sentenced to spend what represented a quarter of his time in Australia thus far in prison. This is undoubtedly significant.
6. The Applicant's offending seems relatively frequent but what is of more significance and cannot be denied is its increasing seriousness during the period from his first offence in 2008 up to the time of his sentencing for the drug matters in 2016. The relative frequency and escalating seriousness of the offending, to my mind, confirms two things: (1) the nature of this Applicant's offending conduct to date is very serious; and (2) I cannot be convinced that it is at an end.

1. The primary focus of the Applicant's offending has involved a significant participation in the trafficking, possession and supply of dangerous drugs. There can be no doubt that this type of unlawful activity - specifically those drugs directed for sale towards "recreational" aspects of our society - is to be viewed with the utmost seriousness.
2. This Tribunal has made its position on this type of unlawful activity quite clear: Deputy President Kendall has recently spoken of the seriousness of this type of offending involving the large-scale and commercial movement or trafficking of these substances commencing at a high-end level and moving downwards through the sale and supply of these unlawful substances into the general community. In Lau and Minister for Immigration and Border Protection [2017] AATA 138 at [46], Deputy President Kendall noted:

Mr Lau was found to be in possession of methylamphetamine. The trial evidence shows that he intended to sell or supply those drugs in the Australian community. Given the well documented devastation inflicted on the community as a result of the production, distribution and use of methylamphetamine, this is a most serious crime. Mr Lau's failure to acknowledge the consequences of his actions is inexcusable in these circumstances.

1. The often catastrophic health consequences for gullible, naïve and addicted consumers of these substances frequently involves very serious illnesses and related maladies. There is nothing passive or non-violent about the frequently disastrous effects of these substances, not just on individuals who consume them but on families forced to deal with the unpredictable conduct of a family member affected by them.
2. Thus the cumulative effect of the Applicant's offending history is such as to render it very serious for the purposes of this primary consideration, involving, as it does, the protection of the Australian community. There seems little or no resistance to such a finding from the Applicant. He conceded the seriousness of his offending at the hearing and purported to demonstrate remorse.

1. In consideration of the above, I have little difficulty in agreeing with the Minister's delegate in finding that the Applicant's offending can only be viewed as very serious in terms of its overall impact on the community.

(b) The risk to the Australian community should the Applicant continue to commit further offences or engage in other serious conduct

1. Paragraph 13.1.2(1) provides that a decision maker should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. In assessing the risk, the Tribunal must have regard to the two factors in paragraph 13.1.2(2). They are:
   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 reoffending...

1. Criminal or other serious conduct inherently has a negative effect on individuals and the Australian community at large. The essential question for the Tribunal is what level or magnitude of harm would the Applicant cause to individuals in the Australian community if he continued offending? I have no doubt that it would be very serious indeed.
2. This Applicant had a significant involvement in the trafficking and supply of dangerous drugs. The consumption of such substances may cause catastrophic harm to individual users. However, there are other and perhaps slightly less obvious deleterious effects of this unlawful activity. As is now well-known, addicted individual users of these substances all too often resort to committing crimes themselves in order to raise sufficient funds to meet their habit.
3. As well, there is a quantifiable cost to the community both in terms of an increased imposition on (1) the public health system to cope with the physical and psychological consequences of these substances in our community; and (2) resources to be allocated to law enforcement agencies to detect and apprehend the wrongdoers and the justice system to hear and adjudicate offences arising from this activity.
4. It is clear that any return or resumption by the Applicant to his previous drug offending conduct would represent a quite significant risk of physical and psychological harm to members of the Australian community.
5. There is, to my mind, no other conclusion that can be arrived at upon application of paragraph 13.1.2(2) of the Direction: given the serious nature of the Applicant's prior offending, were he to reoffend, the nature of the harm he could cause to either individuals or the Australian community more generally, is plainly serious and includes the risk of injury or death.

Likelihood of engaging in further criminal or other serious conduct

1. The Applicant contends he will no longer offend. He told the Tribunal that he wants to return to Australia from New Zealand and take steps to rehabilitate himself. As mentioned earlier, he has provided some details about the rehabilitative (and other) courses he has undertaken while in custody.[20] Those courses relate to the management of substance abuse issues as well as some courses aimed at eventual employment.
2. At the time of his sentencing for the abovementioned drug offences, the Applicant obtained a report from Mr Peter Perros, Forensic Psychologist and Clinical Neuropsychologist.[21] This report was obtained primarily for the information of the sentencing process for the Applicant in the Supreme Court. There are two questions put to Mr Perros which he answers as follows:

4. Any other matter you believe relevant to Sentencing in determining his penalty

Mr Tahuriorangi has already spent 10 months in custody. He understands that he fell into a very dysfunctional lifestyle and that he was depressed and that he was making bad decisions. Further imprisonment will likely have no further reformatory value. I respectfully recommend an intensive correction order with regular drug testing and counselling from an experienced clinical psychologist who can help guide Mr Tahuriorangi through the next few years as he slowly rebuilds his life and tries to forge a (shared parenting?) relationship with his ex-wife and daughter.

5. Whether the client poses a direct risk to the community and/or whether the client is likely to re-offend when released.

There is nothing in Mr Tahuriorangi's psychological profile that raises concerns of direct risk to the community. As long as he complies with treatment and abstinence from amphetamines I expect he will become a productive member of the community and a good father.[22]

(my underlining)

1. As against these answers, Mr Perros proffers this opinion about the Applicant:

Mr Tahuriorangi's immature personal skills and his maladaptive use of alcohol and methylamphetamine to cope with stress and symptoms of mood disorder need to be addressed by a clinical psychologist. Mr Tahuriorangi would also benefit from regular supportive counselling to help him deal with day to day problems until such time as he matures and develops more appropriate skills for coping.

I believe that with personal and professional supports in place Mr Tahuriorangi should be able to return to a productive life. He may benefit from regular drug testing when he is first released from custody. I believe that a series of successful (negative) tests may boost his self-esteem because he seeks external sources of support.[23]

(my underlining)

1. There can be little question that the Applicant has prospects of re-entering the community with minimal risk. However, this premise is predicated on his continued involvement with expert and therapeutic intervention in the form of an experienced clinical psychologist or similar expert. This is yet to occur. In the absence of any demonstrated formal rehabilitation it is difficult for the Tribunal to form a view that the Applicant is now a rehabilitated or changed man to the extent that he is not an unacceptable risk to the Australian community.
2. To his credit, the Tribunal has been presented with evidence that the Applicant has undergone at least two random drug tests in New Zealand in March 2018, both of which showed up negative.[24] Thus, the Applicant seems to have stopped using drugs.
3. While the Applicant may contend the likelihood of his offending is "minimal and remote" and that his offending was not so serious as to fall within the category of 'serious offending' described in paragraph 6.3(4) of the Direction,[25] that contention does not have traction in circumstances where there is nothing from an independent expert to say that he has either overcome or is well on the way to overcoming the psychological issues behind his previous offending. The Applicant's assertion, put forward in his evidence, that he will commence a personal rehabilitation process is unsupported as it is by any evidence from an independent treating expert. I accept that he has done the abovementioned courses while in custody. Despite that, I am of the view that no reliable assessment can be made of his propensity to reoffend without the benefit of his completion of a course of treatment with an independent expert. Therefore, an insufficient period of time has elapsed to allow sufficient opportunity for these rehabilitation claims to be tested.
4. The question for a decision maker now is how this Applicant will conduct himself in an unrestrained and unsupervised environment within our community. Can he be trusted - on his own evidence of rehabilitation - incomplete and unverified as it is - to not relapse into a fresh pattern of offending? I have little confidence in the Applicant's claim that his risk of reoffending is of "an extremely low likelihood".[26]
5. Having regard to the totality of the above, I am of the view that the Applicant would pose a significant risk to individuals in the Australian community. Continued drug offending in the nature of his previous offending could result in members of the Australian community suffering anything from serious physical and psychological injuries to death.
6. I therefore determine that on the totality of the material available to me, Primary Consideration A weighs in favour of not revoking the mandatory cancellation of the Applicant's visa.

Primary Consideration B: The Best Interests of Minor Children in Australia Affected by the Decision

1. The Applicant has one biological child from his previous relationship, a daughter now aged five years. He also cites a nephew (whose age is not apparent from the evidence) as a second child that could be affected by cancellation of the Applicant's visa.
2. Paragraph 13.2(1) of the Direction provides that a decision maker must make a determination about whether revocation is, or is not, in the best interests of a child. This consideration only applies if the child is under 18 years old at the time of the decision.[27] I am satisfied that the Applicant's biological child is relevant to this consideration. I will make the same assumption for the nephew. Where 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.[28]
3. Paragraph 13.2(4) of the Direction sets out a number of factors that must be taken into account, where relevant, when assigning weight to this consideration. Relevantly, some of the factors include:
   • (a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where... there have been long periods of absence, or limited meaningful contact;
   • (b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18...;
   • (c) The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
   • (d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
   • (e) Whether there are other persons who already fulfil a parental role in relation to the child; ...

The nature and duration of the relationship between the child and the non-citizen

1. As mentioned, there is a biological child, born in 2012 and a nephew whose age is not known. The nature and duration of the relationship between the Applicant and his child has, on any reasonable view, been overwhelmingly conditioned by one of two things: (1) separation from his spouse; and (2) his being in custody and away from Australia (where both children reside). The material discloses that in chronological terms, the Applicant: (1) separated from his former spouse and primary caregiver to his biological child in October 2014; (2) that he was taken into custody for the drug offences on 8 September 2015 and remained in custody for these offences until 7 May 2017; (3) that he was then immediately taken into immigration detention and remained there until approximately 20 August 2017; and (4) that he was removed to New Zealand on 20 August 2017, where he remains. This total period of both separation from his former spouse (and primary caregiver for the child), plus his time in custody for the drug offences, plus his time in immigration detention amounts to something in the order of three and a half years. His biological daughter is aged five years.
2. This is a very long period of absence which commenced early in the Applicant's daughter's life. Indeed, I am satisfied that it commenced at a stage in the daughter's life - she was aged between one and two years when the Applicant was first incarcerated - that a meaningful relationship could not then have existed, especially where he was separated from the daughter's mother.

There is scant evidence of active and hands-on involvement by the Applicant as the primary carer for his biological daughter or, for that matter for, his nephew prior to his going into custody in September 2015. It is therefore difficult to make a finding that he has played any meaningful parental role in the lives of either: (1) biological daughter; or (2) his nephew since either his separation from his former spouse, his incarceration for the drug matters, his placement into immigration detention and, now, his absence in New Zealand. The extent to which the non-citizen is likely to play a positive parental role in the future - specifically, until the child turns 18

1. As mentioned above, the Applicant has spent approximately three and a half of his daughter's five years in either criminal custody, immigration detention or in New Zealand due to his removal from Australia in August 2017. Little in the way of convincing evidence was adduced to convince the Tribunal of any capacity in the Applicant to play some measure of a positive parenting role in his daughter's future over the next 13 years until she attains the age of 18 years.
2. It is contended on behalf of the Applicant that he has been "intimately involved" in his daughter's life "from the time of her birth until the present day".[29] This contention of "intimate involvement" is based on (1) frequent telephone discussions and visitations from his daughter during the period of his incarceration; and (2) his communications with her "...every second day by either Facetime or phone call" since his return to New Zealand in August 2017.[30]
3. In her evidence, the former wife of the Applicant, and mother of the subject daughter of their prior relationship, told the Tribunal about her trip in September/October 2017 to New Zealand with the daughter to visit the Applicant. She said the daughter stayed with her father for a full week and he seemed very involved with her. The former wife gave further evidence about having a private agreement with the Applicant for the ongoing financial support of their daughter even while he is in New Zealand.
4. While I have no doubt about the genuine nature of the love and affection between the Applicant and his daughter, this factor requires something more than that. It requires me to engage in a predictive exercise about the likelihood of this Applicant "being there" to play a positive parental role in his daughter's life for the next 13 years until she attains the age of 18 years. There are two factors militating against such a positive prediction. First, I am not certain the Applicant's offending days are behind him and, secondly, there is next to no evidence of his having played such a role to any significant extent in the child's life thus far. Accordingly, this factor can, at best, provide slight weight to this Primary Consideration B.

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. In her statement dated 6 June 2016 and provided at the time of the Applicant's sentencing for the serious drug matters, the Applicant's former wife detailed elements of their previous relationship.[31] In terms of the effect of the Applicant's conduct on both her and their daughter, the statement records:

I was in shock when I found out about [the Applicant] being arrested & charged with drug related charges. It made me sick to my stomach and caused me a lot of stress for myself and for our daughter who was 2 going on 3 at the time...

...

My daughter and I are paying for what [the Applicant] has done. Stress, anxiety and depression. Counselling and speech therapy for our daughter. It defiantly [sic] affections [sic] the kids more ways than one.[32]

1. In her oral evidence to this Tribunal, the Applicant's former wife said their daughter is "a very emotional child". She said she has taken their daughter to "many different counselling sessions". Her further evidence was that their daughter carries the Applicant's photograph around with her and that she often cries for him. According to the former wife, their daughter's school teacher reports that the child often speaks of the Applicant.
2. Even without the benefit of expert psychological or psychiatric evidence, it is evident that the Applicant's past conduct has had an adverse impact on the daughter and, for that matter, the former wife. Again, without the benefit of such expert evidence, I think the assumption can safely be made that any future repeat of all or part of his historical offending would have a negative impact on the child. As best as I understood and recall the evidence, there was little or no mention of the nephew in connection with this or any of the other factors applicable to this Primary Consideration B.
3. Taken in totality, although I note the evidence of the former wife about the impact of the Applicant's past serious criminal conduct on their daughter, there is an absence of independent evidence verifying its past impact on how it would affect their child in the future were the Applicant to resume his past offending. Thus, only limited weight can be granted to this Primary Consideration B as a result of this factor.

The likely effect that any separation from the non-citizen would have on the child, taking into account other ways they could maintain contact

1. In her evidence, the former wife made it clear that the relationship between her and the Applicant is at an end. She has re-partnered and has had a second child (then two months old) from her new relationship. Although there have not to my knowledge been Family Court proceedings on this question, I would have thought it more likely than not that even if the Applicant were able to return and remain in Australia, his parenting role would be one of the non-custodial parent, albeit with sufficiently liberal contact time with his daughter.
2. To her credit, in terms of "block" time for the Applicant, the former wife arranged for both her and the daughter to travel to New Zealand in September/October last year so the daughter could spend a week with the Applicant. We are told the Applicant is trying to save money to fly the daughter and the former wife to New Zealand for a future visit.[33] In terms of regular contact, we are told "The Applicant speaks to his daughter and [the former wife] at least every second day by either videocall (through Facetime) or phone call."[34]
3. Aside from the Applicant, virtually all the daughter's known support people - all of both the Applicant's and the former wife' immediate and extended family - reside in Australia. The daughter has her mother, her step-sibling and the remainder of both the Applicant's and the former wife's families around her. While she will be denied more frequent and perhaps (depending on the ongoing nature of the relationship between him and the former wife) even spontaneous time with the Applicant, such as an unannounced collection of her from school by her father, there is little in the way of independent expert evidence to demonstrate any long-term adverse affect on the child were the Applicant to remain in New Zealand. There is no evidence on this point with respect of the Applicant's nephew. At best, I can allocate only limited weight to Primary Consideration B as a result of this factor.

Whether there are other persons who already fulfil a parental role in relation to the child

1. I am of the view that the former wife seems to more than adequately fulfil the parenting role in relation to the daughter. As mentioned earlier, the cumulative periods of criminal custody, immigration detention and his absence in New Zealand represents the significant majority of the daughter's life thus far. Accordingly there can be little other than minimal evidence about what type - if any - hands on, day to day care the Applicant has provided for the daughter. Given the role of the former wife and members of both the Applicant's and the former wife's families in the care of the daughter, I consider that there are other persons - aside from the Applicant - who already fulfil a parental role in relation to that child. For the sake of completeness, I note and mention that the Applicant's nephew has his own mother and father.[35] As noted by the Respondent,[36] and as best as I understood the evidence, there is nothing to suggest the nephew's parents do not fulfil the parenting role of that child.
2. For reasons outlined above relating to each of the relevant factors, I am of the view that although Primary Consideration B may, upon initial consideration, militate in favour of revoking the Applicant's visa cancellation, it only does so slightly.

Primary Consideration C: Expectations of the Australian Community

1. I turn now to the final primary consideration: the expectations of the Australian community. In making this assessment, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to the Government's views in this respect. Paragraph 13.3(1) of the Direction further directs a decision-maker to endorse non-revocation as an appropriate finding if the nature of the Applicant's offending is such that the Australian community would expect that he should not hold a visa.
2. A proper consideration of this Primary Consideration C requires an objective analysis of an Applicant's offending across a given factual matrix. A hasty decision based on populist or prevailing views should be avoided. Rather, one must look to the expectations of "... the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501."[37]
3. The application of paragraph 13.3(1) of the Direction has recently been the subject of consideration by Deputy President Forgie of this Tribunal in ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102]-103]:

102. In my reasons for decision in Re Rabino and Minister for Immigration and Border Protection, I considered this paragraph in some detail. I will not repeat my analysis but adopt its conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects noncitizens to obey Australia's laws while in Australia but leaves open, for example, what is an "unacceptable risk" that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. I respectfully suggest that a consideration of what is an acceptable risk and what is not will be informed by the Principles set out in the current Direction. Paragraph 6 generally, and paragraph 6.3 in particular, must be borne in mind. That is particularly so when regard is had to the general statement in 6.2(1) that:

"... 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."

103. Although ultimately a matter for judgment, the facts on which that judgment is made must be made on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.

(my underlining; footnotes omitted)

1. Having regard to the principles set out in paragraph 6.3 of the Direction, I am of the view that the Australian community, especially with reference to (1) this Applicant's serious offending history in this country and (2) the absence of any independent expert evidence that he has overcome or has mastered control of the factors in his psyche that previously caused him to seriously offend:
   • (i) would endorse the Government's cancellation of his visa, given the circumstances of the Applicant's commission of serious crimes in this country; and
   • (ii) would consider that his very serious breaches of the trust behind the above expectations, render it appropriate that he does not continue to hold a visa.
2. This, in turn, involves a consideration of whether the Australian community would expect this Applicant to be granted a visa to return here in circumstances where:
   • after arriving in this country as an eight year old, the Applicant begins offending - albeit traffic offending - in 2008, aged 18 years;
   • there can be no doubt about the escalating nature of the seriousness of the offending as is demonstrated by a cursory look at his criminal history and resulting sentences:[38]
     • (i) June 2011: commit public nuisance: no conviction recorded, fined $400;
     • (ii) September 2015: supplying dangerous drugs;
     • (iii) September 2015: possessing dangerous drugs: conviction recorded, but not further punished due to the immediately following custodial term;
     • (iv) September 2015: possessing anything for use in the commission of a crime: For this offence and the preceding offences at (ii) and (iii), a conviction was recorded on all charges and the Applicant was sentenced to a term of imprisonment for six months;
     • (v) September 2015: possessing dangerous drugs of a Schedule 1 variety in a quantity of or exceeding Schedule 3 but less than Schedule 4:
     • (vi) September 2015: receiving or possessing property obtained from trafficking or supplying dangerous drugs. For this offence and the immediately preceding offence at (v), a conviction was recorded on all charges, the Applicant was sentenced to a term of two years imprisonment to be suspended for five years after serving 20 months;
     • (vii) September 2015: possessing dangerous drugs of a Schedule 1 variety in an amount of or exceeding Schedule 4. For this offence, a conviction was recorded and the Applicant was sentenced to three years imprisonment to be suspended for five years after serving 20 months;
     • (viii) September 2015: trafficking in dangerous drugs. For this offence, a conviction was recorded and the Applicant was sentenced to five years imprisonment to be suspended for five years after serving 20 months;
   • the sentencing remarks of Boddice J made the seriousness of the drug offending abundantly clear. His Honour noted:
     • (i) "It is clear from the sheer quantity of cash that was found in your car when the police intercepted you that it was a very significant operation. They are serious aspects of your trafficking [in dangerous drugs]";[39]
     • (ii) "In total there was 481 grams of pure methylamphetamine in a total amount of a little under 700 grams of the substance. That is a huge quantity of methylamphetamine in circumstances where the purity was very high indeed";[40]
     • (iii) "The quantity of methylamphetamines in particular indicates that you were part of a substantial network whereby you had access to high purity drugs in circumstances where, as I have indicated, I am not satisfied it was for your own personal use. The sheer quantity of the drugs together with the circumstances in which they were found and the other items are entirely consistent with your having possession of those drugs for a commercial purpose.

You will be sentenced on that basis".[41]

• there is no independent psychological or psychiatric evidence that the Applicant has overcome the problematic elements of his psyche that initially caused him to spiral into his pattern of offending. The forensic psychologist and clinical neuropsychologist, Mr Peter Perros,[42] is clearly of the view that the Applicant's psychological symptoms warrant "...counselling from an experienced clinical psychologist who can help guide [the Applicant] through the next few years as he slowly rebuilds his life."[43] There is no independent and expert evidence before the Tribunal that the Applicant's substance abuse and other psychological issues have been "...addressed by a clinical psychologist", nor is there any summary or report of any benefit the Applicant may have derived from "...regular supportive counselling..." so that he can overcome these issues - as recommended by Mr Perros.[44]

1. The Applicant has been an adult for something in the order of 10 years. Paragraph 6.3(5) of the Direction tells a decision maker that the Australian community has an understandably low tolerance for any criminal or other serious conduct by visa holders who have been participating in, and contributing to, the Australian community only for a short period of time.
2. The Applicant has barely had an opportunity to establish himself in any line of work and any prospects of this occurring have been severely curtailed due to his time in custody and for the period he has been outside Australia. It cannot be said that he has made any meaningful contribution to the Australian community in circumstances where (1) the offending for which he was sentenced in October 2016 was, without doubt, serious; and (2) there is an absence of independently verified rehabilitation. Having regard to these factors one can appreciate the Australian community's lowered tolerance of this Applicant's serious offending and his lack of any meaningful participation in and contribution to the Australian community.
3. While I accept the Applicant did have involvement within his local church community, I have difficulty in accepting his contention that the Australian community would believe that he should be given a second chance because, amongst other reasons, he "...has demonstrated a commitment to rehabilitation through his imprisonment."[45] To my mind, submission to a judicially imposed custodial term is not evidence of a commitment to one's rehabilitation. Rather, it evidences submission to the lawful authority of the sentencing Court. A commitment to rehabilitation in this case is best-demonstrated by independent and expert psychological and/or psychiatric opinion squarely addressing whether or not the Applicant has overcome his personality traits and psychological disposition towards factors that gave rise to his offending. As previously mentioned, this Applicant is, in effect, a step away from obtaining such medical evidence - as recommended by Mr Perros.
4. At the hearing and, to some extent, in the material,[46] there was reference to the Applicant "maintaining consistent employment" during his adult life. I am hard-pressed to find any evidence from any employer to demonstrate that he has held down a job on a long term basis. Mr Perros notes that "When he left school [the Applicant] travelled to Shepparton in Victoria where he worked as a farm worker (tomato picking)."[47] The contention of maintaining constant employment does not sit either convincingly or comfortably with me in circumstances where it is clear that one of the main factors in the deterioration of the relationship with the former wife arose from financial difficulty in servicing a $33,000 car loan and a $6,000 GE Money loan for household expenses. If the Applicant had constant and decently remunerative employment, then one would have thought these relatively modest financial liabilities could have been more readily serviced.
5. It should be noted that, to his credit, the Applicant has attained a completion Certificate for the DO IT Program (Drug Offender Intervention and Treatment)[48] demonstrating at least some measure of working towards addressing his issues with illicit substances. As well, and again to his credit, he has completed the AGCC Buddy Mentoring Program[49] which involves assisting other inmates to settle into and assimilate with prison life. While the Applicant is to be commended for his diligence in undertaking and completing these courses, there is no proven record of him applying any benefit he may derive towards the benefit of the Australian community. Completing these courses is one thing. Utilising any knowledge from those courses and converting it into a valuable participation and contribution to the Australian community, is another.
6. There is also evidence of steps towards the Applicant ridding himself of a reliance on illicit substances. He completed respective drug testing procedures on 2 and 14 March 2018 with clear (i.e. negative) results.[50] While this is positive news, it needs to be part of a duly considered and implemented regime of treatment by a clinical psychologist as recommended by Dr Perros.
7. The Applicant's mother gave evidence at the hearing. She confirmed she was aware of the Applicant's criminal history and that in fact she was in Court on the day he was sentenced in October 2016. She spoke of "ongoing support" that the Applicant's immediate family could provide to him were he to return to Australia. She also spoke of "a strategy" that she had for the Applicant such that "we have three jobs lined up for him, depending on what he wants to do". She added that she had not discussed these apparent employment opportunities with the Applicant but that he knows "we will back him". For self-apparent reasons, I have difficulty in accepting this evidence without the benefit of any independent verification from an employer or employers willing to offer the Applicant such employment.
8. All of the character references before the Tribunal at this hearing derive from his sentencing at the Queensland Supreme Court in October 2016. Only the former wife - as one of these referees - gave evidence at the hearing. The references speak well of the Applicant but unfortunately do not provide any telling information about any significant or other contribution the Applicant may have made to the Australian community. Accordingly, only limited weight can be allocated to these references being, as they are, from persons who are not truly independent of the Applicant.
9. Having regard to the totality of my comments and findings in relation to this Primary Consideration C, I do not consider that the Australian community would be prepared to give this Applicant "a second chance". Rather, I find that they would expect that the Applicant's visa would be cancelled and that he would not be allowed to remain in Australia.
10. Having regard to this Primary Consideration C, I find that this consideration weighs heavily in favour of non-revocation.

1. It is necessary to look at the other considerations listed at paragraph 14 of the Direction. I have considered each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e). I will address each in turn.
2. With reference to other consideration (a) - International Non-refoulement obligations - there has been no submission that this consideration is relevant in this case.
3. With reference to other consideration (b) - Strength, nature and duration of ties - the Applicant has resided in Australia for some 22 years. He is now 29 years of age. His relatives in this country comprise his former wife, his child, his parents, his two sisters, his brother, 18 uncles and aunts, 23 nieces and nephews and 26 cousins. He also has three nieces and nephews, as well as one cousin in New Zealand.[51] I agree with the Respondent's two following contentions. First, the Applicant does have family members in Australia but that apart from (to the extent she can as an ex-spouse and as mother of the daughter of their relationship) the former wife and the Applicant's mother, there is limited evidence from other family members expressing a desire that he remain in Australia. Second, cost issues aside, there is nothing to suggest that his family would be unable to visit him in New Zealand or to maintain contact with him in other ways. As outlined above, the former wife and the daughter travelled to New Zealand to visit the Applicant last year. There is also evidence of regular electronic contact.
4. To their mutual credit, both the Applicant and the former wife gave frank and honest evidence at the hearing about the historically difficult and traumatic nature of their relationship. Their evidence seemed "at one" in terms of the factors leading to its end. There is no prospect of a reconciliation and, indeed, the former wife has re-partnered and has another child with her new partner.
5. Accordingly, while I do accept that this Other Consideration (b) does assist the Applicant, I do not accord it much weight; the Applicant's ties to Australia simply are not that strong.
6. With reference to other consideration (c) - Impact on Australian business interests - there was no suggestion that any Australian business interests would be impacted if the Applicant's visa cancellation is not revoked. This particular other consideration is of no weight to my consideration.
7. With reference to other consideration (d) - Impact on victims - there is no specific evidence about the impact on any victims of the Applicant's offending. Accordingly, I cannot accord this factor any weight.
8. With reference to other consideration (e) - Extent of impediments if removed - as noted by the Respondent, there is minimal evidence of the Applicant being adversely affected by his return to New Zealand. The Respondent also accepts that he may experience some short-term hardship in re-establishing himself in New Zealand, residing, as he had been, in Australia since the age of six or seven.
9. As against that, the Applicant has, to his credit, found employment as a food production worker deriving an income of NZD $650 per week and, to his further credit, he remits about $100 per week back to the former wife to assist her with the cost of caring for their daughter. As I understood the Applicant's Statement of Facts, Issues and Contentions, this $100 weekly payment by the Applicant is on top of his regular child support payments.
10. There is clearly no impediment to the Applicant finding work in New Zealand. Similarly, he would suffer no language or other cultural barriers if compelled to remain there. In Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301, the Tribunal commented that:

New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand... New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The applicant will have access to those services as a New Zealand citizen.[52]

1. It seems clear that the work experience and employment capacity the Applicant developed in Australia is readily transferable to New Zealand. Accordingly, there are minimal or no impediments to him remaining in New Zealand. No weight is thus given to this factor.

1. There is no doubt that on the basis of his offending, the Applicant does not pass the "character test" as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction.
2. Together, primary Considerations A and C weigh heavily in favour of non-revocation. Both of those Primary Considerations outweigh the combined weight of Primary Consideration B and any of the Other Considerations that may, to any limited extent, weigh in favour of revocation or have no weight at all. Therefore, I find that there is not another reason to revoke the cancellation of the Applicant's visa.

1. For the reasons outlined above, I affirm the decision under review.

I certify that the preceding 110 (one hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

...........................[sgd].............................................

[1] The original decision being the mandatory visa cancellation by virtue of s 501(3A) of the Migration Act 1958 (Cth).

[2] Exhibit 5, G-Documents, G 3, page 9.

[3] The Applicant had a substantial criminal record because he had been sentenced to a term of imprisonment of more than 12 months pursuant to ss 501(6)(a) and 501(7)(c) of the Migration Act 1958.

[4] Exhibit 5, G-Documents, G 12, page 106.

[8] Exhibit 2, Respondent's Statement of Facts, Issues and Contentions ("SFIC"), paragraph [53].

[9] Exhibit 5, G-Documents, G 9, pages 97-98.

[10] Exhibit 3, Summonsed Police Records, page 5.

[14] Ibid, page 2. Note: the Applicant was arrested for his drug offences on 7 September 2015 and was remanded in custody until his sentencing on those charges on 10 October 2016.

[15] Direction No 65, paragraph 7(1)(b).

[16] Ahori and Minister for Immigration and Border Protection [2017] AATA 601 at [53] per Senior Member Sosso (as he then was).

[17] See Exhibit 5: section 501 - G-Documents, PG10, page 100.

[20] See Exhibit 1, Applicant's Statement of Facts, Issues and Contentions, page 4, paragraph 27.

[21] See Exhibit 5, G Documents, G24, pages 140-146.

[25] See Exhibit 1, Applicant's Statement of Facts, Issues and Contentions, page 11, paragraph 76.

[26] See Exhibit 1, Applicant's Statement of Facts, Issues and Contentions, page 11, paragraph 74.

[27] See Direction No. 65 at paragraph 13.2(2).

[28] See Direction No. 65 at paragraph 13.2(3).

[29] Exhibit 1, Applicant's SFIC, paragraph [79], page 12.

[31] Exhibit 5, G Documents, G22, page 138.

[33] Exhibit 1, Applicant's SFIC, paragraph [38].

[35] Exhibit 5, G Documents, PG 13, page 119.

[36] Exhibit 2, Respondent's SFIC, paragraph [37], page 10.

[37] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] per Deputy President Block.

[38] The sentences for each of the listed offences committed in September 2015 came before Boddice J for sentencing on 10 October 2016 in the Queensland Supreme Court.

[39] Exhibit 5, G-Documents, PG 10, page 100.

[41] Ibid, page 101. Boddice J noted two additional things by way of mitigation. His Honour said: "There is, however, an explanation contained in the letter that has been provided by your wife. As a consequence of stress related to marital life and financial pressures, it seems your wife and you had difficulties. You ultimately separated." (at page 101 of this Exhibit 5). His Honour further added: "I also take into account your pleas of guilty and the co-operation and remorse shown by them." (at page 102 of this Exhibit 5).

[42] Exhibit 5, G Documents, G24, pages 140 - 146.

[45] Exhibit 1, Applicant's SFIC, para [93(j)], p 14.

[50] See Exhibit 4, Drug testing results.

[51] Exhibit 5, G Documents, G13, p 121.

[52] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.