//
[2022] AATA 1748
General information, not legal advice.
Administrative Appeals Tribunal of Australia
2022-06-21
Original judgment source is linked above.
The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant's Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
.............[Sgd]....................................................
MIGRATION - decision of delegate of Minister not to revoke mandatory cancellation of the Applicant's Visa - character test - substantial criminal record - offences include drug and possession of stolen property offences - Direction No 90 - primary and other considerations - protection of the Australian community - nature and seriousness of the conduct - risk to the Australian community - whether there was family violence - best interests of the Applicant's minor children - minor child with special needs - expectations of the Australian community - extent of impediments if removed to New Zealand - links to the Australian community - strength, nature and duration of ties to Australia - there is another reason to revoke the Cancellation Decision - Reviewable Decision set aside and substituted
JFSQ and Minister for Home Affairs [2019] AATA 616
Kohli and Minister for Immigration and Border Protection [2017] AATA 1326
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 442
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
SCJD and Minister for Home Affairs [2018] AATA 4020
Subasinghe and Minister for Home Affairs [2019] AATA 751
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531
Webb v Minister for Home Affairs [2020] FCA 831
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
Commonwealth of Australia, Department of the Prime Minister and Cabinet, Final Report of the National Ice Taskforce, 2015
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021) paras 4(1), 5.1, 5.1(3), 5.2, 5.2(4), 5.2(5), 6, 7, 8, 8(1), 8(2), 8(3), 8(4), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(a)(iii), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.3(3), 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(f), 8.3(4)(g), 8.3(4)(h), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 8.4(3), 8.4(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4.1, 9.4.1(1), 9.4.1(2), 9.4.2(3)
1. The Applicant is a 37-year-old man who is a citizen of New Zealand. He first travelled to Australia in August 1999 when he was 14 years of age. From June 2003 when he was between the ages of 18 and 25, he resided in New Zealand. He returned to reside in Australia in April 2010 (G23).
2. On 23 September 2020, the Applicant was sentenced in the Perth District Court for seven offences he committed on 31 December 2019. These offences included:
(a) two offences for "possession of a prohibited drug with intent to sell or supply (methylamphetamine)"; and
(b) two offences for "possession of stolen or unlawfully obtained property" for which he received a total effective sentence of two years' imprisonment (R2/1, 151, 153).
3. Consequently, the Applicant's Class TY Subclass 444 Special Category (Temporary) visa (Visa), was cancelled on 20 November 2020, under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (G24) (Cancellation Decision). The basis of the Cancellation Decision was that the Applicant did not pass the character test because he had a substantial criminal record and was currently serving a full-time sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory. The notice of the Cancellation Decision advised the Applicant that he could make representations to seek revocation of the Cancellation Decision.
4. In a request dated 9 December 2020, the Applicant requested revocation of the Cancellation Decision. He provided a personal circumstances form and supporting evidence including character references (G8-G9).
5. After considering the Applicant's representations, on 28 March 2022 a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (G3/17). This is the Reviewable Decision currently before me.
6. The Applicant was notified of the Reviewable Decision on 29 March 2022, when it was hand delivered to him in immigration detention (G29).
7. On 30 March 2022, the Applicant lodged an application in the General Division of this Tribunal seeking a review of the Reviewable Decision (G2). Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act.
8. Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the
84-day period started running from 29 March 2022, meaning that I must hand down a decision on or before 21 June 2022.
(a) whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b) if the Applicant does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
10. I heard this application on 2 June 2022 at the Perth Registry of the Tribunal. The hearing was conducted by Microsoft Teams.
11. The Applicant was self-represented. The Respondent was represented by Mr A Burgess of Sparke Helmore Lawyers.
12. The Applicant gave oral evidence at the hearing and was cross-examined.
13. The Applicant called the following witnesses who gave evidence at the hearing:
14. I admitted the following documents into evidence at the hearing:
(a) Typed document titled "Re: Applicant's submissions" filed on 17 May 2022 (Exhibit A1);
(b) Certificate of participation for the Men's Group Personal Development and Behavioural Change Program dated November 2021 (Exhibit A2);
(c) Certificate of participation for weekly Lifeskills Alcohol and Other Drugs Education Program dated November 2021 (Exhibit A3);
(d) Undated letter from AB (Exhibit A4);
(e) Undated and unsigned letter from DB, the former employer of the Applicant's mother and a friend of the Applicant's (Exhibit A5);
(f) Undated and unsigned document titled "witness statement" from the Applicant's partner, H (Exhibit A6);
(g) Undated and unsigned letter from a family friend, LD, who is the sister of a person the Applicant's mother was the carer for (Exhibit A7);
(h) Unsigned letter dated 2 May 2022 from the Applicant's mother's cousin, JC (Exhibit A8);
(i) Letter dated 28 April 2022 from CM, the Managing Director of a drilling company where the Applicant was previously employed (Exhibit A9);
(j) Letter dated 14 April 2022 from the Applicant's mother's general practitioner (Exhibit A10);
(k) Undated and unsigned letter from the Applicant's mother, M, to the Tribunal (Exhibit A11);
(l) Letter dated 22 June 2021 from Acacia Prison regarding the Applicant's attendance at 12 recovery from addiction meetings (Exhibit A12);
(m) Unsigned letter dated 2 May 2022 from the Applicant's mother's cousin, RT (Exhibit A13);
(n) Section 501 - G Documents, labelled G1 to G29, comprising pages 1 to 143 (Exhibit R1); and
(o) Summons Bundle, comprising pages 1 to 167 (Exhibit R2).
15. Prior to the hearing the Respondent also filed a Statement of Facts, Issues and Contentions dated 26 April 2022 (SFIC). The Applicant's submissions, which I have labelled above as Exhibit A1 were filed in lieu of a SFIC.
16. Section 501(3A) of the Migration Act provides that:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
17. Section 501(6)(a) of the Migration Act provides that:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
18. A "substantial criminal record" is defined by s 501(7)(c) of the Migration Act as follows:
(7) For the purposes of the character test, a person has a substantial criminal record if: ...
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
19. Section 501CA of the Migration Act further provides, in part:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
20. Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
21. Further, s 499(2A) of the Migration Act states that "[a] person or body must comply with a direction under subsection (1)".
22. On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 90) under s 499 of the Migration Act, which commenced operation on 15 April 2021. This Direction replaced the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018).
23. Paragraph 5.1 of Direction No 90 sets out "[o]bjectives", with para 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
24. Paragraph 5.2 of Direction No 90 sets out "[p]rinciples" which "provide the framework within which decision-makers should approach their task of deciding whether to ... revoke a mandatory cancellation under section 501CA". The principles are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
25. Informed by the principles set out in para 5.2 of Direction No 90, the decision-maker (in this case, the Tribunal - see definition of "decision-maker" in para 4(1) of Direction No 90) must consider the primary considerations listed in para 8 of Direction No 90, and the other considerations listed in para 9 where relevant (para 6 of Direction No 90).
26. Specifically, para 8 of Direction No 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
27. Paragraph 9 of Direction No 90 lists other considerations to be considered as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
- strength, nature and duration of ties to Australia;
- impact on Australian business interests
28. Guidance as to how a decision-maker is to apply the considerations in
Direction No 90 can be found in para 7, "[t]aking the relevant considerations into account", which provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
29. The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
30. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a "substantial criminal record" as defined by s 501(7) of the Migration Act.
31. A person has a substantial criminal record if they have been "sentenced to a term of imprisonment of 12 months or more" (s 501(7)(c) of the Migration Act).
32. As noted in the "background" section above, on 23 September 2020, the Applicant was sentenced in the Perth District Court to an effective two-year term of imprisonment. This was comprised of (R2/1):
(a) a one year and 10-month concurrent term of imprisonment for the offence of "possession of a prohibited drug with intent to sell or supply (methylamphetamine)";
(b) a two-month cumulative term of imprisonment for another offence of "possession of a prohibited drug with intent to sell or supply (methylamphetamine)";
(c) a four-month concurrent term of imprisonment for the offence of "possession of stolen or unlawfully obtained property"; and
(d) an eight-month concurrent term of imprisonment for another offence of "possession of stolen or unlawfully obtained property".
33. The Applicant has therefore been sentenced to a term of imprisonment of 12 months or more, and as a result, does not pass the character test by operation of s 501(7)(c) of the Migration Act. As the Applicant fails the character test, the statutory power to revoke will only be enlivened if there is "another reason" why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
34. In Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 442 at [29], Senior Member Nikolic explained the meaning of "another reason" with reference to the Full Federal Court's decision in Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531 (Viane), [64] per Colvin J:
It is common ground the Applicant fails the character test. As such, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the reviewable decision. The issue to be determined is whether there is 'another reason' for revocation. This task was considered by the Full Court of the Australian Federal Court (FCAFC) in Viane_:_
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision 'should be' revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
35. That is, there must be "a reason that carries sufficient weight or significance" (Viane) for me to be satisfied that the Cancellation Decision should be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 90)
36. Paragraph 8.1(1) of Direction No 90 provides that:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
37. Paragraph 8.1(2) of Direction No 90 then provides:
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 90)
38. Paragraph 8.1.1(1) of Direction No 90 provides:
(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
39. Although the Applicant has spent time in New Zealand between the ages of 18 and 25, he does not have a criminal history in New Zealand (G20). At the hearing the Applicant admitted that he may have one or two offences for driving under the influence of alcohol in New Zealand (transcript/14).
40. I will now summarise the Applicant's adult offending history in Australia, from his Court Outcomes History - Criminal and Traffic (R2/1-3) (the dates listed are the dates the offence was committed):
(a) "_Exceed 0.08g alcohol per 100ml of blood; >=0.12g/100ml but
(b) "Causing excessive smoke created under new hoon legislation" on 30 March 2012. The Applicant accelerated heavily while his car was stationary which caused a large amount of smoke from the tyres. The Applicant received a $500 fine and his vehicle was seized for 28 days (R2/13).(c) The following seven offences committed on 31 December 2019:
(i) "Possess a prohibited drug (cannabis)" and "possessed a prohibited weapon". He received a $750 fine for each of these offences.
(ii) "Possessed drug paraphernalia in or on which there was a prohibited drug or plant". He received a $350 fine.
(iii) The two "possession of a prohibited drug with intent to sell or supply (methylamphetamine)" offences (which I referred to above at [2] and [32]) for which he was sentenced to a one year and 10-month concurrent term of imprisonment, and a two-month cumulative term of imprisonment.
(iv) The two "possession of stolen or unlawfully obtained property" offences (which I also referred to above at [2] and [32]) for which he was sentenced to concurrent terms of imprisonment of four months and eight months.
The facts of these offences were set out by Her Honour Barone DCJ when sentencing the Applicant on 23 September 2020. Her Honour stated (R2/143-144):
... the facts that I find for the purpose of sentencing are these. In the early morning of 31 December 2019 you were driving a black Holden Commodore on the road in [suburb name omitted] on [road name omitted]. You were pulled over by police at the intersection. Police conducted a search of the vehicle. That search was electronically recorded and the police had a discussion with you.
Inside the vehicle the police found a black magnetic storage box which has been magnetised to the inside of the centre console of the vehicle underneath the stereo. The box contained various clipseal bags and in it was a total amount of methylamphetamine of 13.06 grams. Subsequent testing of that methylamphetamine showed it to be 71 per cent pure. You were arrested on suspicion and that's the count on the indictment.
They also found a quantity of cannabis in the dash compartment and $1,065 cash in your wallet ... There were also some empty clipseal bags found under the driver's seat in a box and an envelope in the sunglasses compartment in the roof.
The drugs and cash were seized by police and you participated in a video on the roadside where you did make admissions to being in possession of the prohibited drugs. As I've said you didn't admit that you are selling them but you certainly admitted that you knew that the box was in the car and that you knew it was a prohibited drug so I'll come onto that later but I accept that you admitted those things. You also provided the police with access to your mobile phone and it, as I'm told that phone contained further evidence that you were involved in the sale of methylamphetamine.
They went then to your house, as I understand it, and conducted a search. ...
The search of your house [address omitted], they searched your bedroom and found a clipseal bag which contained 3.53 grams of methylamphetamine. ... That substance was tested later and confirmed to be methylamphetamine. The police also located, I think, scales and clipseal bags and things which were consistent with you being involved in the sale of drugs. So that relates to ... possession of prohibited drug, methylamphetamine, with intent to sell or supply.
In relation to ... the drug paraphernalia, during the same search of your bedroom they found for glass smoking implements with traces of methylamphetamine on it which is consistent with you being a user as [the Applicant's lawyer] has told me, of methylamphetamine.
In relation to ... a further charge of unlawfully obtained property, possession of unlawfully obtained property, during the search of your bedroom police found $10,940 in cash in various denominations and they seized it. You told the police about $1,390 in cash but you didn't make any comments about the other cash that was seized.
In relation to ... possession of a prohibited weapon also in that same search at your house, police found an extendable baton in the driver's side door of your vehicle and the baton's prohibited under the Weapons Act and that was seized. Now, I except what [the Applicant's lawyer] says that there is no suggestion that you were using the weapon in any way that was menacing. It simply is a weapon that you're prohibited from having possession of.
(d) "Breach Family Violence Restraining Order or Violence Restraining Order" (VRO Breach Offence) on 7 February 2020 for which the Applicant received a spent conviction and a $450 fine (R2/26). I will discuss the facts of this offence in detail below.
(e) "Possessed drug paraphernalia in or on which there was a prohibited drug or plant" on 5 May 2020 for which the Applicant received a $300 fine. The Applicant was the front passenger in a parked vehicle. When police searched his bag, they found a glass smoking implement that contained traces of methylamphetamine (R2/27).
(f) "No authority to drive - suspended" on 29 July 2020. The Applicant was stopped for speeding when police ascertained that his licence was suspended (R2/29). The Applicant received a $400 fine, his vehicle was impounded, and his drivers' licence was disqualified for nine months.
41. The Fines Enforcement Registry also records some driving/ traffic related offences that do not appear on the Applicant's Court Outcomes History - Criminal and Traffic (R2/161). These offences are:
(a) "no authority to drive - suspended (other than fines suspension" registered on 10 September 2020;
(b) "exceed speed limit by no more than 9kmh" registered on 16 September 2020 and 6 January 2021; "exceed speed limit between 10 and 19km/h" registered on 30 October 2020; and "exceed speed limit between 20 and 29km/h" registered on 11 May 2021;
(c) "stopped on path, traffic island, median strip or painted island" registered on 21 January 2021; and
(d) "failed to return a number plate from an unlicensed vehicle" registered on 24 February 2022.
42. The Applicant also committed three offences as a minor (R2/3):
(a) "Burglary and commit offence (place)" which occurred on 3 August 2001. The Applicant smashed a newsagency window to gain entry and stole items to the value of approximately $100 (R2/4). He appeared in the Mandurah Court of Petty Sessions on 22 August 2001 and was referred to the Juvenile Justice Team.
(b) "Robbery whilst armed in company". The Applicant entered a deli wearing a hooded jacket and a t-shirt covering his face. Upon entering the shop, he produced a machete and demanded money from the two owners of the shop (R2/7). He was sentenced to 10 months' detention by the Perth Children's Court on 4 December 2001, and his evidence at the hearing was that he served approximately six months.
(c) "Stealing" a push bike with a co-offender which he was found riding on 10 October 2002. On 28 October 2002, the Applicant was sentenced to a three-month youth community-based order and 25 hours community work.
43. To clarify, my focus is on the Applicant's adult offending. I have considered the Applicant's juvenile record for the purpose of establishing when the Applicant began offending after arriving in Australia.
Assessing the nature and seriousness of the conduct
44. The offences the Applicant has been convicted of do not fall within the types of crimes or conduct described in Direction No 90 as being "very serious" (para 8.1.1(1)(a)) or "serious" (para 8.1.1(1)(b)). However, the conduct described in those sub-paras is not exhaustive, and the Tribunal has previously recognised that other types of offences can be categorised as "very serious" or "serious".
45. For example, the Tribunal has previously recognised the harmful effects of drugs on the community (see, for example, Senior Member Cameron in SCJD and Minister for Home Affairs [2018] AATA 4020 (SCJD) at [81]-[83]). These harms will also be discussed below with respect to para 8.1.2 of Direction No 90. The sentencing remarks for the Applicant's drug offences refer to these harms and to the seriousness of the Applicant's drug related offending.
46. When sentencing the Applicant on 23 September 2020, Her Honour Barone DCJ referred to the seriousness of the Applicant's methylamphetamine offences (R2/144-145). Her Honour also described the harms that drugs can cause to the community (R2/150):
General deterrence is important because, as the prosecutor says, methylamphetamine, in fact all drugs, are a scourge on our community ... methylamphetamine is an underlying part of a significant amount of the work that this court and all of our criminal courts have to do. It leads to property offences, violent offences, disorderly-type offences, stealing offences, you name it. It underpins everything.
47. As I detailed above, the Applicant also has numerous driving and traffic related offences. This Tribunal has often regarded driving offences as being serious (see Senior Member Poljak in Kohli and Minister for Immigration and Border Protection [2017] AATA 1326 at [20]). The Applicant's driving and traffic offences are, however, less serious than many driving offences because, for example, they did not involve reckless or dangerous driving. He does, however, have a conviction for driving under the influence of alcohol in May 2011. I regard that conduct as being serious because impaired driving under the influence of alcohol is a danger to other innocent road users. The Applicant also has a conviction for driving whilst suspended in July 2020. He admitted that he had continued to drive even though he was suspended and on bail (transcript/21). This shows a disregard for lawful authority and a disregard for the safety of other innocent road users.
48. Paragraph 8.1.1(1)(a)(iii) of Direction No 90 provides that "acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed" fall within a category of offences "viewed very seriously by the Australian Government and the Australian community". As I have outlined above, the Applicant was convicted of the VRO Breach Offence. A breach of a VRO is generally a serious offence. However, for the reasons I explain below, under the family violence primary consideration, I am not reasonably satisfied that there were any "acts of family violence" committed by the Applicant.
49. I am also able to consider "conduct to date" as well as criminal offending. The Applicant has two recorded prison charges from incidents on 27 February 2021 which he pled guilty to (R2/39, 83-85). The first was for trafficking an item into the prison during a social visit from his former partner, namely a metal ring, which the Applicant said at the hearing was an engagement ring she gave him (transcript/22). The second incident, on the same date, was for conspiring to traffic cannabis into the prison during a social visit. The Applicant was confined to a punishment cell for three days for both charges. The Applicant stated that he was pressured by other prisoners to traffic the cannabis and did so because he feared for his former partner's safety, but the trafficking did not occur because the plan was heard by prison authorities in an intercepted phone call he had with his former partner (transcript/22). The trafficking of the metal engagement ring is relatively minor, but an attempt to traffic cannabis into the prison is more serious because drugs can cause serious issues in prison.
50. With respect to the sentences imposed by the courts (para 8.1.1(1)(c) of Direction No 90), the Applicant received fines and disqualifications for his driving/ traffic and other offences, which he was sentenced for between 29 July 2011 and 10 September 2020, indicating that that offending was less serious. It was not until the 31 December 2019 offences, which he was sentenced for on 23 September 2020, that the Applicant received terms of imprisonment. In deciding that a term of imprisonment was the appropriate disposition, Her Honour stated (R2/151):
... taking into account all of the matters that I'm required to, including the discount for the pleas of guilty, the seriousness of your offending, the need to have weight to general and personal deterrence, but also the fact that there is an aspect of commerciality to your offending, I am of the view that terms of imprisonment are the only appropriate disposition to impose.
51. After weighing those matters, Her Honour further stated that "it's just simply inappropriate to suspend the term" (R2/152). These terms of imprisonment indicate the seriousness of the two "possession of a prohibited drug with intent to sell or supply (methylamphetamine)" offences and the two "possession of stolen or unlawfully obtained property" offences.
52. I now turn to the frequency of the Applicant's offending, and whether there is any trend of increasing seriousness (para 8.1.1(1)(d) of Direction No 90). The Applicant's first two adult offences were driving/ traffic related offences in 2011 and 2012. After a gap of approximately eight years, he drove whilst suspended in July 2020. He committed a further seven driving/ traffic related offences which were listed on the fines enforcement register in 2020 and 2021, but not on his Court Outcomes History - Criminal and Traffic, and so his traffic and driving related offences can be categorised as frequent, but overall, have not increased in seriousness.
53. From 2012, until he committed the seven offences on 31 December 2019, which included the methylamphetamine and stolen property offences, there was a gap in the Applicant's criminal offending. He then committed the VRO Breach Offence in February 2020 and possessed a glass pipe that contained traces of methylamphetamine in May 2020. He does not have a lengthy history of criminal offences, and his criminal offending is not frequent. The offences have, however, increased in seriousness because they culminated in serious drug offences for which the Applicant was sentenced to a term of imprisonment.
54. I consider that there is some cumulative effect of repeat offending given the number of driving and traffic offences committed and registered on the fines enforcement register, his numerous court attendances and his custodial sentence of imprisonment (para 8.1.1(1)(e) of Direction No 90).
55. On an incoming passenger card dated 16 March 2017, the Applicant ticked the box marked "no" in response to the question, "do you have any criminal conviction/s" (G22/101). I accept the Applicant's explanation at the hearing that he thought his juvenile records were wiped, and that he did not think his two driving offences at that time were criminal offences. I therefore do not draw any adverse inference against the Applicant (para 8.1.1(1)(f) of Direction No 90).
56. Paragraph 8.1.1(1)(g) of Direction No 90, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. He has not received any warnings of this nature.
57. I find the nature and seriousness of the Applicant's driving/ traffic offences to range from a low to moderate degree of seriousness. The traffic infringements recorded on the fines enforcement register, such as exceeding the speed limit by more than 9km/h and stopping on a path, traffic island, median strip or painted island, are of a lower level of seriousness. However, driving under the influence of alcohol, and driving whilst suspended (particularly when the Applicant knew he was suspended, and was on bail) are serious because they show a disregard for the safety of other road users.
58. The Applicant's VRO Breach Offence is a less serious example of that kind of breach (for reasons I will explain under the family violence primary consideration below). It does, however, suggest a disregard for lawful authority because the Applicant knew a family VRO was in place when he breached it. He has some less serious drug offences such as possessing a pipe which contained traces of methylamphetamine and cannabis possession, and a weapons possession offence for possessing a baton. His prison charges are conduct which did not result in criminal charges, and in my view fall within this less serious category.
59. The two "possession of a prohibited drug with intent to sell or supply (methylamphetamine)" offences and the two "possession of stolen or unlawfully obtained property" offences (with the property being cash from the sale of drugs) are serious. This can be seen in the comments of the sentencing Judge, Her Honour Barone DCJ, who referred to the harms of drugs to the community, the seriousness of the offences, the element of commerciality and the necessity for, and length of, the custodial terms of imprisonment.
60. The Applicant does not, however, have a lengthy criminal history when compared to many that come before the Tribunal. He has not offended after being warned and has not intentionally provided misleading information to the Department.
61. Overall, I find that the Applicant's offending ranges from offences that are of a low-level of seriousness, through to more serious offences. On balance, I find that para 8.1.1 of Direction No 90, the nature and seriousness of the conduct, weighs moderately against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 90)
62. Paragraph 8.1.2(1) of Direction No 90 provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
63. Paragraph 8.1.2(2) of Direction No 90 provides, in part, in relation to assessing risk:
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
- information and evidence on the risk of the noncitizen re-offending; and
- evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of the harm (para 8.1.2(2)(a) of Direction No 90)
64. Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 90).
65. The dangers associated with methylamphetamine (also known as "ice") use were outlined in the Commonwealth of Australia, Department of the Prime Minister and Cabinet, Final Report of the National Ice Taskforce, 2015 (Final Report) at iii:
Unlike cannabis and heroin, ice is an extremely powerful stimulant. For some people, it can trigger psychological disturbances or violent and aggressive behaviour. Long term use may damage the brain and cause impaired attention, memory and motor skills. The distress ice causes for individuals, families, communities and frontline workers is disproportionate to that caused by other drugs.
66. The Final Report further outlined how uniquely harmful methylamphetamine is to the user and to society, at 5:
In the majority of submissions and consultations, the Taskforce heard about the uniquely harmful nature of ice, that even irregular use has a high risk of serious harms, and that regular and dependent use can seriously damage the user as well as their friends, family and community. Since 2009, there has been a significant increase in the number of harms caused by methamphetamine: more dependent users, more deaths and more costs to the community.
67. Regarding drug offences more generally, above at para [46], I outlined the comments of the sentencing Judge, Her Honour Barone DCJ. Her Honour referred to methylamphetamine contributing to the work of the criminal courts and contributing to offences such as property offences, violent offences, disorderly and stealing offences.
68. The harms to the community, and to individuals in the community, of trafficking in drugs were recognised in SCJD, which I have also referred to above, where Senior Member Cameron stated at [81]-[83]:
The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person's drug dependency. There is a massive toll on the nation's mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.
In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.
There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.
69. In summary, purchasing, possessing, and selling drugs supports the illicit drug trade in the Australian community. The prevalence of drugs causes harm to the community on many levels. These harms include the prevalence of drug related crimes, including violence and theft, increases in property and health insurance premiums, as well as mental and other health issues for drug users, and the negative impact that this can have on their families. Should the Applicant commit more drug offences, the harm that could result could be very serious.
70. A primary purpose of road traffic and driving laws is the protection of road users. For example, prohibitions against driving whilst suspended exist to ensure that persons driving cars are appropriately qualified and safe to do so. Prohibitions against driving under the influence of drugs or alcohol exist to ensure that drivers are not unsafe to themselves and others by driving when they are impaired. Contraventions of these laws can result in serious consequences, including fatalities from road traffic accidents, as well as physical and psychological injuries to innocent road users.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 90)
71. Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (para 8.1.2(2)(b)(i) and sub-para (ii) of Direction No 90).
72. The Applicant does not have a long criminal history when compared to many that come before this Tribunal. Indeed, approximately half of his criminal history arose from charges that occurred on the same day, being 31 December 2019. However, the Applicant admitted at the hearing to buying and selling drugs over a period of time to fund his habit and his former partner's habit. This is how he accrued the $11,000 cash police found in his house and the cash police found in his wallet (transcript/18). He is therefore likely to have engaged in more offending conduct than his criminal history suggests. To the Applicant's credit, there is a seven-year gap in his criminal history which shows that he can live in the community for a lengthy period without committing any criminal offences.
73. However, the repeated nature of his driving/ traffic offences is of concern because it suggests that the Applicant has not been deterred by fines and driving disqualifications. As I mentioned above, the July 2020 offence for driving whilst suspended was committed when the Applicant knew his driver's licence had been suspended and when he was on bail. The Applicant's evidence at the hearing was that he has conspired to traffic cannabis into the prison due to threats to the Applicant and his partner at that time. However, even if he had been threatened, the Applicant's attempt to traffic cannabis into prison is of concern given that he was in prison for drug offences. There is also no evidence to corroborate the Applicant's story that he conspired to traffic the drugs because he and his former partner had been threatened. Additionally, the Applicant also ignored a court order, being a family VRO, when he breached the order by visiting his wife. This poor history of compliance is of concern because it suggests a possibility of future non-compliance.
74. The Applicant's offending from 2019 onwards, which comprises the bulk of his offending, is primarily related to his drug use. His evidence at the hearing was that he had used cannabis prior to coming to Australia but that in 2010 or 2011 he was introduced to methylamphetamine. The Applicant and his wife, H, had both used methylamphetamine which contributed to the breakdown of their marriage. At the time of the breakdown of his marriage, the Applicant was using methylamphetamine daily (R2/147). The Applicant moved in with another woman, who was also a methylamphetamine user. This was a difficult time for him because he was not seeing his children and was using methylamphetamine as a coping strategy (R2/146). His evidence was that he had stopped working due to his drug use and that he was selling drugs to fund his habit and his new partner's habit (transcript/17-18; 31). His wife, H, also ended up serving a sentence of imprisonment in 2020 for approximately three months for drug related offending (transcript/18). The Applicant and his wife, H, reconciled in January 2022 (transcript/10; 29; 52).
75. It was noted by the sentencing Judge, Her Honour Barone DCJ, that the Applicant had made positive steps towards rehabilitation. Her Honour noted that he had voluntarily referred himself to drug counselling and that he had attended six counselling sessions with an organisation called "Linkt" (R2/149). Attending this counselling voluntarily and before sentencing is indicative of the Applicant's willingness to address his substance abuse issues.
76. The Applicant was assessed by prison assessors as having a "low risk of reoffending" when they applied the Risk of Reoffending - Prison Version (RoR-PV). Consequently, he was not recommended for criminogenic programs. He did, however, complete seven sessions of the "Green lighthouse" program and attended Narcotics Anonymous (R2/77). I also note a letter from Acacia Prison dated 22 June 2021 confirming that at that time the Applicant had attended 12 "recovery from addiction" (Narcotics Anonymous) meetings (A11). At the hearing, the Applicant estimated that he had attended "just under 24 meetings" in total (transcript/32). At the hearing, the Applicant was able to describe some of the insights he gained from attending Narcotics Anonymous. He also showed insight into the negative impact of his drug use and his offending on his children. He spoke about how drugs have "ruined" him and his life and the "pain" that he has inflicted on his children due to his drug use and imprisonment (transcript/33). The Applicant's completion of voluntary courses is positive and shows a willingness to address his drug use which is directly related to his offending. His insight into the negative impact on his life and the lives of his children is likely to provide motivation for him not to reoffend.
77. The Applicant has also undertaken voluntary courses in immigration detention. These were the "Lifeskills Alcohol and Other Drugs Education Program" in November 2021 (A3) and he participated in an anger management session as part of the "Men's Group Personal Development & Behaviour Change Program" (A2) which demonstrates a motivation to change and to continue his rehabilitation.
78. The Prisoners' Review Board (PRB) granted the Applicant parole from his earliest parole eligibility date of 22 September 2021 (R2/88). The reasons for granting parole were:
Should you be unsuccessful in your legal attempts to remain in Australia, your repatriation to, and release into, the New Zealand community does not pose an unacceptable risk to that community.
The salutary impact of your first term of imprisonment and your first opportunity for parole supervision should you be successful in your legal attempts to remain in Western Australia.
You being assessed as a low risk of reoffending.
Your Western Australian parole plan which includes confirmed suitable accommodation, and a wide range of support from within the community.
Your improved positive prison conduct.
Your participation in voluntary programmes, which demonstrates a motivation and willingness to address your offending behaviour.
79. The PRB also imposed several conditions to the Applicant's parole. These included attending random urinalysis for illicit substances when directed, and to attend programs and counselling as directed. The Applicant's parole period expires on 22 September 2022, and so, if the cancellation of the Applicant's Visa is revoked, he will have a period of approximately three months under parole supervision. This may assist with his reintegration into the community and to abstain from drugs.
80. I also note that there is no evidence that the Applicant has used drugs in prison or immigration detention. His parole report states that he had random urinalysis tests in October and December 2020 which returned negative results (R2/84). This period of abstinence, as well as the Applicant's insights into the negative effects of his drug use, may assist to break the cycle of the Applicant's drug use and may assist him to remain abstinent in the community.
81. I accept the Applicant's evidence that he is remorseful for his actions and the distress that he has put his family through (transcript/37). Expressing remorse can be indicative that an applicant accepts responsibility for his or her offending (JFSQ and Minister for Home Affairs [2019] AATA 616 at [65] cited in Subasinghe and Minister for Home Affairs [2019] AATA 751), which may in turn be a factor that lowers the likelihood of reoffending. The Applicant now appreciates that his conduct has resulted in his Visa being cancelled. If it remains cancelled, he will return to New Zealand without his wife, H, and two minor sons, and will face separation from them. He is also afraid that he will never get to see his elderly mother who suffers from health issues again or be able to look after her if he is deported (A1/2). He realises the impact of his offending on his wife, H, who has been under financial strain and has had to move in with the Applicant's mother because she cannot afford to pay rent. The Applicant also appreciates that H is feeling the strain of caring for their autistic son and that their youngest son is suffering from anxiety due to the Applicant's situation (transcript/26; 29). As well as being remorseful, I also find that the Applicant is motivated to maintain his abstinence from drug use, not to reoffend and to be a provider for his family.
82. As well as undertaking voluntary treatment programs in prison, the Applicant also undertook some education and training courses, including participating in the Prisoner Employment Program and Food Handler Training Program, and obtaining a certificate I in Entry to General Education and a Certificate I in Construction (R2/85). He also has work experience as a fly in fly out worker, where he was a plant operator for a mining company and worked for a drilling company (transcript/31). The Managing Director of this company is willing to consider re-employing the Applicant if his Visa is reinstated, although there is no definite offer of employment (A9). I accept that the Applicant's education and training courses and work experience are likely assist him to find employment, which would be a protective factor if he is released into the Australian community.
83. As well as the Applicant having the support of his mother (A11) and his wife, H (A6), he also has support from other friends and family in the community (A5, A7, A8, A13; see also G13 to G19). Having this strong support network may assist the Applicant to reintegrate into the community, find employment and will provide motivation for him not to reoffend. I also accept the evidence of the Applicant's wife, H, that she no longer uses drugs and that she successfully undertook rehabilitation with Holyoake. She also has support from a family relationship centre which she will continue to engage with, and which the Applicant will also attend, if he is released into the Australian community (transcript/46).
84. In summary, there are factors that suggest there is a likelihood of the Applicant committing further drug related offences and possibly driving/ traffic offences. These factors include: his significant drug addiction; his prior poor history of compliance including driving suspended whilst he was on bail and when he knew he was suspended; and conspiring to traffic cannabis into prison.
85. It is my view, however, that if the Applicant can abstain from drug use, there is a minimal to low chance of his reoffending. The factors that suggest this likelihood of reoffending include:
86. Although the Respondent submitted (in accordance with para 5.2(5) of Direction No 90) that even a low risk of drug-related reoffending by the Applicant would be unacceptable given the nature of the harm that could result, I am not reasonably satisfied that the Applicant's offending falls into this category, noting that Her Honour Barone DCJ described him as "a low-level user-dealer" (R2/146).
87. I therefore find that para 8.1.2 of Direction No 90, being risk to the Australian community should the Applicant commit further offences, weighs moderately against the revocation of the Cancellation Decision.
88. I have found that para 8.1.1 and para 8.1.2 of Direction No 90 both weighed moderately against revocation of the Cancellation Decision. Therefore, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs moderately against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 90)
89. Paragraph 8.2 of Direction No 90 requires decision-makers to have regard to family violence committed by the non-citizen:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of the family violence engaged in by the non citizen, the following factors must be considered where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
the extent to which the person accepts responsibility for their family violence related conduct;
the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
90. Family violence is defined in the interpretation section of Direction No 90 at paragraph 4(1), which provides, in part:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a) an assault; or
b) a sexual assault or other sexually abusive behaviour; or
c) stalking; or
d) repeated derogatory taunts; or
e) intentionally damaging or destroying property; or
f) intentionally causing death or injury to an animal; or
g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
j) unlawfully depriving the family member, or any member of the family member's family, or his or her liberty.
91. As I noted above, on 7 February 2020 the Applicant committed the VRO Breach Offence, which he was convicted of on 9 February 2020. This raises the issue of whether this primary consideration is applicable. Specifically, did this offence "involve family violence", as is contemplated by para 8.2(2)(a) of Direction No 90; and/or is there sufficient evidence from "independent and authoritative sources" indicating that the Applicant has been "involved in the perpetration of family violence"?
92. The Applicant's wife, H, applied for a VRO which was granted on 10 January 2020, restraining the Applicant from approaching or contacting her (R2/32-33). He was aware that this restraining order was in place and of its terms (transcript/18-19). The Applicant's evidence was that there was no incident or violence that led to H applying for the VRO. His evidence was that H had applied for the VRO because she did not want him to see the children because she was unhappy that he had started a relationship with another woman (transcript/18). Despite this VRO being in place, the Applicant agreed that he went to H's house to see his children. The Statement of Material Facts states that the Applicant "spoke to the victim [H], verbally abusing her and her new partner" (R2/26). However, the Applicant did not agree there was an argument. He agreed that he and H had "words" and that he told his children it was H's fault that he couldn't see them (transcript/19). It was this incident that resulted in the VRO Breach Offence.
93. His wife's evidence about the events leading to the VRO being granted was consistent with the Applicant's. In a written statement (A6) H stated:
My deepest regret is ever getting a VRO against [the Applicant], Im ashamed to admit that i was acting on my personal emotional feelings at the time and not thinking about the long term affects it would have on the children. I was hurting and really just wanted him to feel some pain too so agaisnt my better judgment i provoked [the Applicant] and then exaggerated the truth for my own selfish gain. Something i willm have to live with for the resdt of my life and i will never stop trying to better myself because of it.
(As original.)
94. Her evidence at the hearing was that there was no specific incident. She was jealous that the Applicant had commenced a relationship with another woman and wanted to "hurt him". Her evidence was that he would come to see the children and would not engage with her or pay her attention. She said she also wanted the VRO because she was worried the Applicant would take her children away to live with the other woman (transcript/40). In her evidence at the hearing, H admitted to "being hurt and just creating a situation and then going and embellishing on it" to obtain the VRO (transcript/40). The VRO was revoked when H did not attend court for the VRO hearing because she "got the dates wrong" (transcript/51).
95. In relation to another incident on 14 September 2019, H described sending the children to the neighbour's house because she wanted to confront the Applicant about why he was not coming back to the family and that she was screaming at him on the front lawn and trying to hit him. H's evidence was that she was trying to confront the Applicant and took his car keys and threw them down a drain when he was trying to leave. Neighbours called the police who attended and imposed a 72-hour police order on H, with the protected person being the Applicant (R2/35). She stated that she was the aggressor and created the situation. When asked if she was afraid during this incident, the Applicant's wife stated that she was not afraid, but rather enraged (transcript/40-42). When asked if there was any violence or any threats, H stated that "any violence that was there was my part" and that she "was always trying to get a reaction out of him" (transcript/41).
96. During the hearing, H was asked about a contemporaneous record which contradicted her evidence at the hearing that the Applicant had not been violent or threatening towards her. This was a request from the Applicant to put her on his phone list when he was in prison. A prison offender note dated 31 March 2021 records that H "became quite distraught" when telephoned by the prison about this request and stated that "he had mentally abused her for years and unfortunately an avo [Apprehended Violence Order] she placed on him was dismissed due to her getting the date incorrect" (R2/66). H's evidence at the hearing was (transcript/51-52):
... if I'd said that I didn't want him to contact me it was because I was still being mean about the children and I was trying to distance him from them because I didn't want this other female being able to take over my role, I guess, that was - that was the only reason why I - I wanted to talk to him. I was the - of course I still love him, I still loved him especially then, you know, I hadn't spoken to him for so long because he - I was completely out of the loop by then, I didn't know what was going on with him and it was just a cheap shot at him not being able to speak to the boys because I knew that they would have to - from my own experience of being in there, you know, they have to, you know, make sure that it's - you know, whoever's phone it is and then I would be able to - he'd be able to talk to the children through, you know, having my number and then I was able to stop that and have control of the situation by not having my number of the call list, but yes.
97. There were also some inconsistencies between H's evidence at the hearing and earlier statements she had made. For example, in a written statement dated 25 June 2021, H stated (G12/78):
At the worst of the separation, I was granted a VRO on [the Applicant] as he kept turning up to see the children without me knowing which would result in a physical altercation which we both take responsibility for. The VRO was dropped as he contested it in the Midland court and I realised our sons needed him in their lives and we began trying to help co-parent ...
98. When asked at the hearing about the "physical altercation" she was referring to in this statement, H stated (transcript/50-51):
So that was when I was, like, first starting to admit that it was my ‑ my ‑ I didn't want to say aloud that it was me that was causing the problem, because I was ashamed of that. That was ‑ it's taken going through the therapy and all of that to be able to own it, and it's just ‑ I just have to, because it's just a ‑ it's a shameful thing, but he would always just try to walk away and I would just always try to ‑ he wouldn't listen to me and so all I could do was, you know, take a swing at him or something like that to just to try to get his attention. And he would hold me away just to like push me away from him, and then, I would ‑ that would just make me madder and I'd just go back at him trying to hit him to, you know, just pay me attention. Just talk to me and tell me wanted to hear. But he wouldn't so that was probably the worst of it was him ... Taking me, pushing me off him when I was going at him in his face. And all I remember swinging at him, and like, you know, trying to just get him to, you know, just to ‑ to want me.
99. The Respondent submitted that limited weight should be given to H's evidence due to these inconsistencies and because it is in her best interests and the children's best interests for the Applicant to stay in Australia (transcript/70). Although I agree that it is in their best interests for the Applicant to remain in Australia, it does not follow that H is lying. I found H to be a credible witness and I believed her evidence at the hearing. She was forthright in her admissions, even when they were detrimental to her in that she admitted to exaggerating the truth to obtain the VRO, which is a serious matter. As H's evidence above suggests, it is likely that she developed insight and reflected upon her own behaviour during her rehabilitation and through attending therapy. I am satisfied that H's evidence was honest and uncoerced.
100. Consequently, I find that the evidence of the conduct that led to H applying for the VRO against the Applicant, the circumstances of the breach, and the circumstances of the occasion on when the 72-hour police order was granted against H to protect the Applicant, do not meet the definition of family violence in para 4(1) of Direction No 90. This is because there was no violent, threatening, or other behaviour by the Applicant that coerced or controlled H, or that caused her to be fearful.
101. In the Summons Bundle (R2) there is a restraining order issued by the Mandurah Children's Court on 5 December 2001, with an expiry date of 6 December 2002 (R2/34). The protected person is NT. When asked about this VRO at the hearing, the Applicant's evidence was that he did not know who NT was. There is no further information before me to explain the circumstances of this restraining order and therefore I am not satisfied it is indicative of any violence or family violence. Given the timing of this VRO, I infer that this VRO may relate to the "robbery whilst armed in company" offence which had a court date of 4 December 2001, and that NT may have been one of the victims who were the owners of the deli the Applicant robbed.
102. In summary, even though the Applicant was convicted of the VRO Breach Offence, it did not "involve family violence" (para 8.2(2)(a) of Direction No 90). Additionally, there is insufficient evidence from other independent and authoritative sources that would allow me to be reasonably satisfied that the Applicant had been involved in the perpetration of family violence (para 8.2(2)(b) of Direction No 90).
103. I therefore find that this primary consideration is not relevant.
The best interests of minor children in Australia affected by the decision (paras 8(3) and 8.3 of Direction No 90)
104. Paragraph 8(3) of Direction No 90 states that in making a decision under s 501CA(4), "the best interests of minor children in Australia" is a primary consideration.
105. Direction No 90 states that decision-makers must determine whether the decision under review is, or is not, in the interests of a child affected by the decision. The first three paras of 8.3 provide:
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
106. Paragraph 8.3(4) of Direction No 90 sets out the factors that the decision-maker must consider:
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
107. The Applicant has two biological sons with his wife, H. They are 11-year-old B and 8-year- old J.
108. B is the Applicant's oldest son with his wife, H. B was born in New Zealand. B also has special needs. A letter from B's key therapist at the Autism Association of Western Australia states that B "has a formal diagnosis of Autism Spectrum Disorder and has Cochlear Implants to support his severe hearing impairment" (A4). H also gave evidence at the hearing that B has "mild hemiplegia on the right side, which is a weakness - low muscle tone" and is "a bit wonky on his walking" which requires regular physiotherapy and podiatry appointments (transcript/44).
109. When the Applicant previously separated with his wife, H, he continued to see B and his brother J every second or third day. Despite the Applicant's absence in prison and immigration detention, he speaks with B every day on the phone, including communicating with FaceTime and playing games on the phone with each other. In a written statement (A11), the Applicant's mother also confirmed that he spoke to his children daily. The Applicant's evidence was that B often asks when the Applicant is coming home (transcript/24). I accept the Applicant's evidence and I find that the relationship between the Applicant and B is a close parental relationship and weighs in favour of the revocation of the Cancellation Decision (para 8.3(4)(a) of Direction No 90).
110. I am not aware of any Court orders relating to parental care and access arrangements for B. It was clear to me from the Applicant's evidence at the hearing, the evidence of H, and the Applicant's mother, that the Applicant is a loving father. Other references before me refer to the Applicant being a "family oriented person" (A8) and a loving father (A7) who "is profoundly remorseful and regretful for the distress and anxiety he has caused his beloved family" (A13).
111. B is only 11 years of age and so there are seven years until he turns 18. These are formative years, and I find that B would benefit from having his father in his life during this time. This is especially due to B's special needs. For example, B's key therapist wrote that B's difficulties in regulating his emotions has resulted in "physical and verbal outbursts towards his Mother and Brother" (A4). These outbursts are likely to be more difficult for H to manage by herself as B becomes older. Having another parent to assist in his upbringing and with his numerous weekly appointments (physiotherapy, podiatry, occupational therapy, behavioural management and play-based therapy and counselling) would be of great benefit to B. I also note the evidence of B's key therapist that since the Applicant's incarceration, B "has presented with an increase of behaviours of concern, and a decrease in school performance and attendance, and social skills". If the Applicant can stay in Australia and recommence living with his wife and children, it is likely to assist to stabilise these concerning behaviours by providing stability to B.
112. B's key therapist also reported that both B and his younger brother J had become "desperate for male (father figure) attention" due to their father not being with them in person, and "are beginning to search for this male attention from unfamiliar people". The therapist expressed concern about this in the context of B having a lack of protective behaviours due to his special needs, making him vulnerable to predators and untrustworthy persons (A4). If the Applicant can stay in Australia, he will be able to provide the attention that B and J are currently seeking, which will benefit them both. Taking these factors into account, I find that the Applicant would, to a great extent, be a positive role model to B in the future (para 8.3(4)(b) of Direction No 90).
113. The Applicant's prior conduct has not had a direct negative impact on B. However, as I have mentioned, it has had an indirect impact in that B's behaviours, school performance and social skills have decreased during the time that the Applicant has been in prison and detention (A4). If the Applicant is permitted to stay in the community and was to resume drug use, and/or was to commit further offences, any subsequent separation from the Applicant due to prison or deportation is likely to have a negative impact on B who "has difficulties regulating his emotions, especially in relation to change, within stressful or unfamiliar situations and transitions" (para 8.3(4)(c) of Direction No 90).
114. I find that separation from the Applicant would have a detrimental effect on B. As I mentioned above, B's behavioural difficulties have increased during the absence of the Applicant, and he is seeking out male attention, making him vulnerable to predators and untrustworthy persons. B's key therapist wrote that "it is highly recommended that B and his family continue to be able to access their current supports and services in Australia" (A4). B "will highly benefit from having his father in Perth and in close proximity to fulfil his role as father and provide further support for the family" (A4). Accordingly, if the Applicant is returned to New Zealand and the children stay in Australia, I find that maintaining contact in other ways, such as via telephone, the internet or videoconference, would be an unsatisfactory substitute for having their father physically present. Whilst those means of communication are currently being used, I find that they are an insufficient and only temporary means of communication. Based on the evidence before me, it is likely the children will stay in Australia if the Applicant is returned to New Zealand. However, if B were to relocate to New Zealand, this is likely to be detrimental to his development. Indeed, H's evidence at the hearing was that B had difficulty moving to a new house recently, stating that, "even just moving out of the house we were in has just been a nightmare" (transcript/44-45). Further, I note that B's therapist said in her letter that "a transition in living situation from Australia to New Zealand would be a significant trigger for B's behaviours of concern" (A4) (para 8.3(4)(d) of Direction No 90).
115. H currently fulfils a parental role in relation to B. Despite having served a prison sentence for drug offences herself, the Applicant's evidence at the hearing was that she provides good care for B and his younger brother J. Although H has had issues with methylamphetamine in the past, I accept that she has undergone drug rehabilitation and that she is also participating in ongoing family therapy. H appears to me to be a good mother who is doing the best she can to bring up two children, including a special needs child, under difficult circumstances. H's evidence at the hearing was that she was struggling financially and that she could no longer afford to pay rent. She and the children had been able to stay with a friend, but they recently had to move in with the Applicant's elderly mother until they can find other accommodation. The Applicant's mother is only able to provide limited assistance because of her own health and mobility issues (A10; transcript/60). Her assistance is only likely to be short-term due to her health and mobility issues (A11). H's evidence was that due to the number of appointments B has during the week, she was not able to consistently work to support herself and the children. I accept that the financial situation of H and the children is an insecure one, with H stating, "financially I'm just ruined" (transcript/43). I am concerned about the precarious nature of H's housing situation and the impact that this may have on B. If the Applicant can remain in Australia, he will most likely be able to assist to provide financial support for H and the children, including more stable accommodation (para 8.3(4)(e) of Direction No 90).
116. There is minimal information before me about B's views, apart from the evidence I have referred to above that he would like his father to come home (para 8.3(4)(f) of Direction No 90).
117. There is no evidence that B has been or is at risk of being abused or neglected by the Applicant (para 8.3(4)(g) of Direction No 90). Nor has B suffered or experienced any physical or emotional trauma arising from the Applicant's conduct, other than the development and behavioural detriment he has suffered because of his father's absence (para 8.3(4)(h) of Direction No 90). The Applicant clearly loves his children and is worried for their welfare. He is likely to be a good role model to B in the future, if he can abstain from drug use.
118. After considering and weighing the factors in paras 8.3(4)(a) to (h) of Direction No 90, I find that revocation of the Cancellation Decision is in the best interests of B and that it would be strongly against B's best interests for the Applicant to be returned to New Zealand. I therefore find that the best interests of B weigh very strongly in favour of the revocation of the Cancellation Decision.
119. J is the Applicant's youngest son with his wife, H. J was born in Australia. As with B, when the Applicant separated from H, he continued to see both his sons every second or third day. He also speaks to J daily and plays games with him on the phone. The Applicant described himself as being "very close" to J (transcript/28). I find that the relationship between the Applicant and J is a close parental relationship which weighs in favour of the revocation of the Cancellation Decision (para 8.3(4)(a) of Direction No 90).
120. As with B, I am not aware of any Court orders relating to parental care and access arrangements for J. As I have observed above, the Applicant is a loving father, and I find that he is likely to be a positive role model for J, to a significant extent, if he can abstain from drugs and does not reoffend. There is also a significant amount of time until J turns 18, being approximately 10 years during which time he would benefit from having his father involved in his upbringing. In this regard, I note the statement from B's key therapist where she notes that J is also becoming desperate for a male father figure (A4). If the Applicant can stay in Australia, it is likely to relieve some of the anxiety that J is experiencing due to having a lack of stability in his life, including not knowing whether his father will be deported (para 8.3(4)(b) of Direction No 90).
121. The Applicant's prior conduct has not had a direct negative impact on J. However, the Applicant's incarceration and detention has had an indirect emotional impact on J who has developed anxiety and a stutter (transcript/28). The Applicant's mother wrote in her statement that J cries when he cannot visit his father and "breaks-down when we speak of his Dad potentially being removed from Australia" (A11). As with B, if the Applicant is permitted to stay in the community and was to resume drug use, and/or was to commit further offences, any subsequent separation from the Applicant due to prison or deportation is likely to have a negative impact on J (para 8.3(4)(c) of Direction No 90).
122. I find that separation from the Applicant would have a detrimental effect on J who is already suffering emotional and mental detriment due to his father not being physically present, and due to the prospect of his father's removal from Australia. As I mentioned above regarding B, if the Applicant is returned to New Zealand and the children stay in Australia, I find that maintaining contact in other ways, such as via telephone, the internet or videoconference, would be an unsatisfactory substitute for having their father physically present. Those means of communication are currently being used, and yet J appears to be struggling without his father (para 8.3(4)(d) of Direction No 90).
123. As I have discussed above for B, H provides good care for the children. However, H is struggling to provide for the family financially in the absence of the Applicant, and their current accommodation is only short-term. H has some limited assistance from the Applicant's mother which is of a temporary nature. H is also caring for B who has special needs and I infer from H's inability to work, B's numerous weekly appointments, and B's emotional and behavioural difficulties which have escalated in the Applicant's absence, that J would greatly benefit from having his father present to provide him with care and attention (para 8.3(4)(e) of Direction No 90).
124. There is minimal information before me about J's views. As I have mentioned, the evidence from the Applicant's mother was that J becomes distressed at the mention of his father being returned to New Zealand. The Applicant's evidence, which I accept, is that J has a greater understanding of the Applicant's predicament than B, and that it would have a very detrimental emotional impact on J if the Applicant were returned to New Zealand (para 8.3(4)(f) of Direction No 90).
125. There is no evidence that J has been or is at risk of being abused or neglected by the Applicant (para 8.3(4)(g) of Direction No 90). Nor has J suffered or experienced any physical or emotional trauma arising from the Applicant's conduct, other than the emotional detriment, including anxiety and the development of a stutter, he has suffered because of his father's absence (para 8.3(4)(h) of Direction No 90). As I mentioned for B above, the Applicant clearly loves his children and is worried for their welfare. He is likely to be a good father and provider in the future if he can remain in Australia.
126. I find that revocation of the Cancellation Decision is in the best interests of J and that it would be strongly against J's best interests for the Applicant to be returned to New Zealand. I therefore find that the best interests of J weigh strongly in favour of the revocation of the Cancellation Decision.
Expectations of the Australian community (paras 8(4) and 8.4 of Direction No 90)
127. A decision-maker must consider the expectations of the Australian community when making a decision under ss 501 or 501CA.
128. These expectations are set out in para 8.4 of Direction No 90, which provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
129. Thus, I must give effect to the "norm" stipulated in para 8.4(1) of Direction No 90, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
130. As is evident from the reference to the "norm" in para 8.4(1) of Direction No 90, I am being told unequivocally what the community's expectations are. Further, para 8.4(4) of Direction No 90 confirms more explicitly that the Australian community's expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government's views about community expectations without independently assessing them.
131. In this regard, I agree with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143, which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman). In Wightman, Deputy President Boyle stated, at [85]-[86]:
... Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195. It was the Court's view that it is not for a decision-maker to make his or her own personal assessment of what the 'expectations' of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed - they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196. It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a 'norm', which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
132. Further detail about the Australian community's expectations with respect to certain types of conduct, is given in para 8.4(2) of Direction No 90. That paragraph states that the Australian community expects that the Australian government should cancel a non-citizen's visa if they raise serious character concerns through specific conduct listed in sub-paras 8.4(2)(a)-(f), which includes acts of family violence, and crimes against women of a violent nature. The Applicant has not committed any of the types of conduct listed in those sub-paras.
133. Paragraph 8.4(3) of Direction No 90 further confirms that the Australian community's expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Thus, although I found above that the Applicant is a low to minimal risk of reoffending if he can abstain from drug use, the community's expectations as stated apply regardless.
134. Above, I found that the Applicant's offending ranged from offences that are of a low level of seriousness, through to serious offences, with his possession of methylamphetamine with intent to sell or supply offences being the most serious. The Applicant has therefore breached the expectation of the Australian community that non-citizens will obey Australian laws while in Australia. Consequently, the expectation of the Australian community would be that the Applicant's Visa should remain cancelled (para 8.4(1) of Direction No 90).
135. I am also guided by the principle in 5.2(4) of Direction No 90. Although the Applicant first came to Australia when he was 14 years of age, he returned to New Zealand between the ages of 18 and 25, returning to Australia in 2010. As the Applicant has lived in Australia for the past 12 years, I find that Australia would have a lower level of tolerance for the Applicant's conduct than for a noncitizen who had lived in the Australian community for most of their life, or from a very young age.
136. Overall, I find that para 8.4 of Direction No 90, being the expectations of the Australian community, weighs moderately against the revocation of the Cancellation Decision.
Other considerations (para 9(1) of Direction No 90)
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
- strength, nature and duration of ties to Australia;
- impact on Australian business interests
International non-refoulement obligations (paras 9(1)(a) and 9.1 of Direction No 90)
138. I am required to consider whether Australia's international non-refoulement obligations arise on any of the submissions, material or evidence before me (para 9.1 of Direction No 90). They do not.
139. Consequently, this other consideration is not relevant.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 90)
140. Paragraph 9.2(1) of Direction No 90 provides:
(1) Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
141. The Applicant is 37 years of age. He is in good physical health.
142. At the hearing I asked the Applicant about a comment in the sentencing remarks of Her Honour Barone DCJ (R2/147) that he suffered from depression, anxiety and PTSD. As I noted above, the Applicant had six counselling sessions prior to his sentencing. The Applicant explained that these sessions were with a counsellor from a residential rehabilitation organisation called "Linkt" who submitted a report to the Court. He explained that the counsellor thought he had these mental health conditions based on issues concerning the Applicant's father who committed suicide when he was nine years old (transcript/35; see also R2/147; 149). However, the Applicant confirmed at the hearing that he was currently in good mental health and was not taking any medication. His mental health history is, however, of some concern to me. Although he has some family in New Zealand, including a brother and sister who may be able to provide him with some emotional support, the Applicant would be separated from his wife, his children and his mother. He is likely to face emotional hardship if he is returned to New Zealand which may exacerbate past mental health issues.
143. As I noted above, the Applicant lived in New Zealand as a child, but also for a period as an adult. He first travelled to Australia in August 1999 when he was 14 years of age. Specifically, from June 2003 when he was between the ages of 18 and 25, he resided in New Zealand. He returned to reside in Australia in April 2010. Thus, New Zealand is not an unfamiliar country for the Applicant.
144. New Zealand is broadly comparable to Australia and there would not be any language or substantial cultural barriers that would constitute an impediment to the Applicant returning to New Zealand. The Applicant will also have access to the same social, medical and economic supports as other citizens of New Zealand, which are equivalent to those available in Australia (Webb v Minister for Home Affairs [2020] FCA 831 at [98]; Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [68]- [69]).
145. The Applicant has some employment history in New Zealand working in construction building retaining walls (transcript/12). In Australia, he worked as a plant operator in the mining industry, a labourer, and worked for a drilling company where he became a supervisor (transcript/31). These would be transferable skills if the Applicant was returned to New Zealand and may help him to find employment.
146. I find that there are no significant impediments that the Applicant would face establishing himself in New Zealand and maintaining basic living standards. Therefore, I find that this consideration weighs only slightly in favour of revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 90)
147. Paragraph 9.3(1) of Direction No 90 provides that:
(1) Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
148. There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), any victims of the Applicant's offending, or any family members of victims.
149. By way of clarity, I have found that the Applicant did not engage in any family violence, and therefore it is not necessary for me to consider the interests of H as a victim under this heading.
150. Consequently, this consideration is not relevant.
Links to the Australian community (paras 9(1)(d) and 9.4 of Direction No 90)
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 to 9.4.2 below.
152. This requires consideration of the strength, nature and duration of an applicant's ties to Australia and the impact of non-revocation of a cancellation decision on Australian business interests.
Strength, nature and duration of ties to Australia
153. Paragraph 9.4.1(1) of Direction No 90 provides that:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
154. Further, paragraph 9.4.1(2) of Direction No 90 provides that:
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
less weight should be given where the non-citizen began offending soon after arriving in Australia; and
more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
155. As I have mentioned above, the Applicant came to Australia as a 14-year-old, resided here for four years until he was 18 when he returned to New Zealand, resided in New Zealand for seven years, before returning to Australia at the age of 25 in 2010. He has therefore resided in Australia for the last 12 years as an adult.
156. The Applicant committed his first juvenile offence of burglary and commit offence (place) in August 2001, having first arrived in Australia in August 1999 (G23/102; R2/3). He committed his first driving offence of driving under the influence of alcohol (exceed 0.08g alcohol) on 21 May 2011, soon after arriving back in Australia. Thus, less weight should be given to the length of time the Applicant has been in Australia because he offended soon after both arrivals.
157. The Applicant has made some contributions to the Australian community through his employment in the mining industry and for the drilling company. Indeed, his wife described the Applicant as being a hard worker who would sometimes work seven days a week as the breadwinner of the family (transcript/46; A6; A7). As well as making some positive contributions through employment, the Applicant has undertaken community work. When his mother was caring for a person with a disability, the Applicant mowed her lawn, did her gardening for free, helped with repairs and cleaning, and included her in family social activities, for a nine-year period, which helped the person stay in her own home (A5; A11). I therefore find that he has also made some positive contributions to the community through his community work. I further find that the weight to be given to these positive contributions cancels out the lesser weight I gave in the preceding paragraph due to the Applicant offending shortly after arriving in Australia.
158. I have already discussed the best interests of the Applicant's two minor sons in the section on the best interests of minor children above.
159. The Applicant's wife, H, was born in New Zealand and is entitled to reside in Australia permanently (transcript/29). She is on a similar visa to the Applicant. She served a three-month prison sentence for drug offences in 2020. Her visa was cancelled, but she was able to make representations to have the cancellation revoked (transcript/52). Both H and the Applicant's mother gave evidence that H is struggling to care for the children without the Applicant (transcript/60). The Applicant's mother is limited in the assistance she can give due to her health issues (transcript/60). As I mentioned above, H is struggling financially. H and the children do not have stable accommodation and have had to move in with the Applicant's mother on a temporary basis because H cannot afford to pay rent (transcript/30). She is also bringing up two children by herself and is unable to work and look after B's special needs due to the number of weekly appointments and interventions he requires. Also, J is experiencing emotional issues following the absence of the Applicant. H would not be able to move to New Zealand with the Applicant because of her eldest son's special needs, and she cannot afford to travel to New Zealand (transcript/46). I find that if the Applicant is not able to stay in Australia, H would suffer very significant practical, financial, and emotional hardship.
160. The Applicant's evidence was that his mother is an Australian citizen (transcript/29). She stated that she is very close to her son, especially after his father committed suicide when he was nine years of age (A11). Her other children (a son and a daughter) reside in New Zealand and she has limited help. A letter from the Applicant's mother's general practitioner dated 14 April 2022, states that she has "severe bilateral knee arthritis and she lives by herself". It further states that "her mobility is reduced and she requires a walking aid" (A10). Her evidence was that she would be greatly impacted if the Applicant was returned to New Zealand. She said that her knees have become worse, and she has fallen a few times. She needs the Applicant to help her in the house and when she has operations in the future (transcript/58). I find that the Applicant's mother would suffer detriment, both emotional and practically, if he was returned to New Zealand.
161. The Applicant also has numerous support letters from friends in the Australian community (which I referred to above at para [83]) who are willing to support him if he can stay in Australia. These are demonstrative of his ties to the Australian community.
162. In summary, although the Applicant has effectively resided in Australia for 12 years as an adult, I find that his ties to Australia are very strong. His children are here. So too are his elderly mother and wife, H, who are relying on him for support and who would suffer detriment and hardship if he was removed from Australia.
163. On balance, I find that para 9.4.1 of Direction No 90, being the strength, nature and duration of the Applicant's ties to Australia, weighs strongly in favour of the revocation of the Cancellation Decision.
164. Paragraph 9.4.2(3) of Direction No 90 provides that:
(3) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
165. This consideration does not arise on the material before me and is therefore not relevant.
166. The Applicant does not pass the character test under s 501 of the Migration Act.
167. I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 90.
168. For the reasons set out above, I made the following findings about the following relevant primary considerations in Direction No 90:
(a) the protection of the Australian community primary consideration weighed moderately against the revocation of the Cancellation Decision;
(b) the best interests of the Applicant's minor son, B, weighed very strongly, and the best interests of his minor son, J, weighed strongly, in favour of the revocation of the Cancellation Decision; and
(c) the expectations of the Australian community weighed moderately against the revocation of the Cancellation Decision.
169. I made the following findings with respect to the other considerations that were relevant:
(a) the extent of impediments if removed weighed only slightly in favour of the revocation of the Cancellation Decision; and
(b) the Applicant's links to the Australian community (specifically, his strength, nature and duration of ties to Australia) weighed strongly in favour of the revocation of the Cancellation Decision.
170. Despite two of the primary considerations (the protection of the Australian community and the expectations of the Australian community) weighing moderately against the revocation of the Cancellation Decision, I find that they are outweighed by the best interests of the Applicant's minor sons, B (whose interests weigh very strongly) and J (whose interests weigh strongly), in favour of revocation of the Cancellation Decision. The Applicant's links to the Australian community which weigh strongly, and the impediments if removed other consideration which weighs only slightly in favour of revocation of the Cancellation Decision, further add to the weighing exercise being in the Applicant's favour.
171. I find that the primary consideration of the best interests of the Applicant's children, particularly the best interests of B, are significant reasons which carry significant weight, such that I am satisfied that the Cancellation Decision should be revoked (Viane). In other words, there is another reason why the Cancellation Decision should be revoked. Therefore, the correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the Cancellation Decision should be revoked.
172. The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant's Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
I certify that the preceding 172 (one hundred and seventy-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
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(2018) 263 FCR 531