Tuioti v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

VISA CANCELLATION 5 As a result of Mr Tuioti's 2018 convictions and imprisonment sentence, his Class TY, subcl 444 special category (temporary) visa was cancelled on 23 April 2018 pursuant to s 501(3A) of the Migration Act 1958 (Cth). 6 Mr Tuioti was given the opportunity to make representations to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs about revoking the decision to cancel his visa. He made representations and provided various documents by way of support of his request for revocation of the cancellation of his visa, but on 7 August 2019, the Minister's delegate decided not to revoke the decision to cancel his visa. Having failed the character test, the delegate was not satisfied that there was another reason why the original decision should be revoked.

REVIEW 7 Mr Tuioti then sought review of the delegate's decision by the Administrative Appeals Tribunal. The Tribunal conducted a hearing at which Mr Tuioti was cross-examined. On 30 October 2019, the Tribunal affirmed the decision not to revoke the cancellation of Mr Tuioti's visa. 8 On 19 November 2019, Mr Tuioti lodged an application in this Court seeking review of the Tribunal's decision. The application contains five grounds of review, which are considered below. Mr Tuioti requested voluntary return to New Zealand in early December 2019. He is now in that country.

IN THIS COURT 9 On 19 December 2019, programming orders were made to ensure his application could proceed to hearing. The orders provided that by 10 February 2020, Mr Tuioti file and serve any amended application giving complete particulars of each ground of review and any affidavit containing any additional evidence on which he proposed relying and that 28 days prior to the hearing, Mr Tuioti file and serve written submissions in support of the application. Mr Tuioti has not complied with any of these orders. After considerable difficulty in communicating with him, he did respond to my Associate in relation to the conduct of this hearing by way of web conference (Microsoft Teams). Mr Tuioti was invited to attend a rehearsal for that hearing on the day before the hearing of the application, but did not appear on that occasion, despite his accepting the invitation. Mr Tuioti has indicated a desire notwithstanding non-compliance with any of the procedural directions to advance his arguments from New Zealand. That is able to be accommodated only electronically either by telephone or video. He indicated he was content to proceed by video although he was informed that if he sought an adjournment, he should explain why and it would be considered. Since the application has been instituted, Governments have enacted emergency provisions as a result of the COVID-19 pandemic. Parties to court proceedings in this court are often required to present arguments remotely and electronically together with the assistance of electronically filed submissions. In this instance, given non-compliance with directions and given that much of the Court's business must now be conducted by methods which differ from conventional physical court-room presence and given that the matter would have to be heard electronically from New Zealand in any event, there was no obvious reason for an adjournment. So the matter was listed. No adjournment was requested. 10 Shortly before the application was due to be argued, the Minister's solicitors forwarded to the Court an email just received from Mr Tuioti in these terms (quoted verbatim): Sorry for a emergency notice about my hearing today reason I was on the bus this morning to the the worf for fresh air and exercise walking, I drop my sim card don't know how , but cause of what just happened , there's nothing no way I can get a another sim to activate for the same 2 & it's my new number , long short I can't get conttact today to be on ma case hearing Today of this matter , if I can atern it in another day , it's not what just happened cause I was going with the same date it said on the email and that it's the 20 & 21, I was ready , sorry if I might miss any new Mail , Thank you, Trip One Enoka. 11 Despite the unsatisfactory nature of that communication in a number of obvious respects which do not need detailing, a short adjournment so as to enable a new sim card to be obtained or other arrangements put in place was granted without objection by the Minister. A ten day adjournment was granted. The following was conveyed to the parties by my Associate: The hearing has been adjourned until 10.15am on Friday 1 May 2020 (West Australian Standard Time). Earlier today the Court was made aware that the applicant made contact with the First Respondent's solicitor indicating that he was unable to attend today's hearing. It should be noted that the Court considers this reason for not attending and the lack of evidence to support it to be wholly unsatisfactory. However, in the interests of justice, a short adjournment was considered appropriate to give the applicant another opportunity to appear in this matter. Please be advised the final hearing of this matter will proceed on Friday 1 May 2020 (West Australia Standard Time). Should the applicant fail to appear, the Court may still consider it appropriate to determine the matter on this date without further adjournment. The hearing on Friday 1 May will take place in the same manner as today's hearing using Microsoft Teams. The parties will receive a calendar invite to the hearing later in the week which will provide details for appearance by either video from a computer or by telephone. Should the applicant require any assistance with connecting to Microsoft Teams, he should contact the Court by reply to this email as soon as possible to organise a time for a 'test run' of the software. Please acknowledge receipt of this correspondence. 12 Mr Tuioti did attend the adjourned hearing by telephone as did Mr Macliver for the Minister. 13 Mr Tuioti first stressed that he had changed a lot since offending and that he deeply regretted and apologised for his offending. He explained that he was now working regularly and, above all, he wanted to be with his children and to look after them for the future. He said he was missing his family greatly and wanted a second chance. 14 Mr Tuioti was also invited to directly address the specific grounds that he had raised in his application. 15 As to ground 1, to the effect that the Tribunal erred in considering the best interests of Mr Tuioti's children, he explained that he had four children in Australia and the two youngest were no longer with their mother. He had been contacting the people who look after them in Australia trying to make sure that the interests of the children were best served. 16 In relation to ground 2, to the effect that the Tribunal erred by failing to acknowledge his rehabilitation and efforts, Mr Tuioti said the 'past is the past' and he stressed that he had done his time in jail and in immigration detention and that both those experiences had made him think greatly about the future and he was now a changed man. 17 As to ground 3, to the effect that the Tribunal erred by stating that he did not respect lawful authority governing the community to which he seeks to be returned, Mr Tuioti apologised again and said that he is 'not that person' anymore. He explained that all his problems were caused by having broken up with his 'ex' and going down the wrong path and using drugs a lot. 18 As to ground 4, to the effect that he was not asked at any time by the Tribunal if he was a current drug user and that it was not right to say that he had an unresolved drug problem, Mr Tuioti explained that his problems arose when he was homeless on the streets and not thinking straight due to the influence of drugs. He did not say anything specifically in support of this ground. 19 As to ground 5, which essentially repeated the asserted inadequacy of the Tribunal's consideration of his minor children's best interests, he simply expressed his remorse and the fact that he knows what is best for his children.

CONSIDERATION 20 It is necessary to consider the five grounds of review advanced by Mr Tuioti. The matters raised by him in oral argument were not substantively directed to the grounds but I have endeavoured to consider possible arguments in support of the grounds. To the extent my indulgence for a 'second chance' has been sought, that does not lie within my power. I am confined to examining possible jurisdictional error.

Ground 1 21 The first of those grounds is that the Tribunal is said to have erred in considering the best interests of Mr Tuioti's children. There are no particulars in support of this ground and no explanation as to how it is alleged that the Tribunal erred in considering the best interests of Mr Tuioti's children. 22 Pursuant to s 499(2A) of the Migration Act the Tribunal is required to comply with any directions made under the Migration Act, relevantly for present purposes, including Direction No 79 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501 and revocation of a mandatory cancellation of a visa under s 501CA. 23 The Tribunal referred to Direction 79 in its reasons (at [14]). It is required to take into account as a primary consideration the best interests of minor children in Australia who may be affected by the cancellation of a visa. These matters were taken into account by the Tribunal in its reasons (at [15], [77] and [88]). 24 Particularly (at [78]), the Tribunal said that Mr Tuioti claimed to have four minor children, aged from 1 year to 9 years old. The Tribunal said it gave careful and detailed consideration of the best interests of Mr Tuioti's four minor children. It discussed the issue in its reasons (at [79]-[105]) as follows: 79. As was seen from [Mr Tuioti's] evidence in cross-examination, he accepted that any parental role he has played in the children's lives to date has been minimal. It is not clear from the evidence whether [Mr Tuioti] is maintaining any sort of relationship with any one of the three mothers of his four minor children. 80. With reference to Child 1, [Mr Tuioti] said in his Personal Circumstances Form "I was at [Child 1's] birth. I spent 8 years with [the mother of Children 1 and 2], and we raised her together for 6 years. I would see [Child 1] and [the mother of Children 1 and 2] now and then". 81. With reference to Child 2, [Mr Tuioti] said "I was at [Child 2's] birth. I spent 8 years with [the mother of Children 1 and 2], and we raised him together for 2 years. I would see [Child 2], [Child 1] and [the mother of Children 1 and 2] now and then…I support [Child 1] and [Child 2] and give [the mother of Children 1 and 2] money whenever I can help feed and clothe them". 82. With reference to [Child 3], [Mr Tuioti] said in in his Personal Circumstances Form "I bought everything for [Child 3] before she was born, but our relationship ended just before [Child 3] was born. [Child 3] was born after I was arrested". 83. [Mr Tuioti's] Personal Circumstances Form was written prior to the birth of [Child 4] and makes no mention of any parental relationship between him and [Child 4]. However, in response to a question about the impact that non-revocation would have on the children, [Mr Tuioti] said this: "If my visa is cancelled I would not be able to be involved in raising my children. They would lose their father and the father figure in their life. I would not be there for all of lifes [sic] milestones like birthdays weddings and the birth of their children. I would be distraugh [sic] and devastated if I could not be involved in their upbringing and I was not able to support my children". Other Evidence in Relation to the Children 84. [Child 1] and [Child 2] both live with their mother and, as will be noted from a review of her evidence, the mother of these two children ceased any contact between them and [Mr Tuioti] in 2016. In relation to [Child 3] - the first of the two children born in 2018 - this child was born after [Mr Tuioti's] incarceration and also after the end of [Mr Tuioti's] relationship with that child's mother. There is no evidence that he maintains any measure of a relationship with [Child 3] and it is difficult to see that situation changing in the medium term given that there is evidence in the material that [Child 3's] mother has taken out a Domestic Violence Order against [Mr Tuioti]. 85. Similarly, there is scant evidence of any parental relationship between [Mr Tuioti] and [Child 4]. Concerningly, [Mr Tuioti] told the Department of Child Safety, Youth and Women that he was not even sure he was [Child 4's] father and that he was looking to challenge his paternity of that child. The care arrangements for [Child 4] appear to be the responsibility of the sister of the mother of [Child 4]. This is because the mother of [Child 4] has ongoing issues with drugs. The Evidence of the mother of Children 1 and 2 - "[the mother of Children 1 and 2]" 87. According to her evidence this stoppage was due to [Mr Tuioti's] unresolved issues with unlawful drugs. She agreed that at times [Mr Tuioti] was a "great father" but in terms of him overcoming his drug issues she was "…not certain about whether things will get better..." in that regard. She said [Mr Tuioti] has to "…get to a point in his life where he says 'enough is enough…' and he manages to deal with his drug issues. It was clear from her evidence that [the mother of Children 1 and 2] does not think that [Mr Tuioti] was anywhere near that point. Application of Factors in Paragraph 13.2(4) of [the Direction 79] 88. Paragraph 13.2(4) of [the Direction 79] provides a list of factors to be considered in determining the best interests of the abovementioned children. Those factors relevantly comprise for present purposes: (a) The nature and duration of the relationship between the child and the noncitizen. 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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and (h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct. 89. Subparagraph (a) of paragraph 13.2(4) of [the Direction 79] refers to the nature and duration of the relationship between the child and the non-citizen. As a general proposition, less weight should be given to this factor where there have been long periods of absence or limited meaningful contact between [Mr Tuioti] and the children. 90. [Mr Tuioti's] long periods of absence and his limited meaningful contact with children 1 and 2 means that he has played little or no parental role in the lives of those two children since at least 2016. As mentioned by their mother, she cut off all contact between [Mr Tuioti] and children 1 and 2 in 2016. With reference to children 3 and 4 born in 2018, the state of the evidence is that [Mr Tuioti] has not even seen or met either of those children. He has had absolutely no contact with either of them. As well, one of those two mothers has obtained a domestic violence protection order against him. 91. Given the long periods of absence of [Mr Tuioti] from the lives of children 1 and 2, and given his complete unfamiliarity to children 3 and 4, there cannot be a finding that the nature and duration of any relationship between [Mr Tuioti] and the children militates in favour of restoring his migration status to him. 92. Sub-paragraph (b) of paragraph 13.2(4) of [the Direction 79] requires a decision maker to make an assessment of the extent to which [Mr Tuioti] is likely to play a parental role in the future, taking into account the length of time there is until the child turns 18. Any application of this sub-paragraph (b) is informed by the extent to which [Mr Tuioti] has played any such role to date. 93. [Mr Tuioti] has, on any reasonable estimate, spent the entirety of the lives of children 3 and 4 in one form of custody or another. With reference to children 1 and 2, his incarceration has caused him to be absent from them for approximately one third to one half of their lives. In addition, their mother cut off contact in 2016. Whatever role he may have played in the lives of children 1 and 2 prior to cessation of contact in 2016 may - only to a slight extent - militate in favour of a finding that a slight measure of weight can be attributed to this sub-paragraph (b) on the basis that it would be in the best interests of the four children for his migration status to be restored to him. 94. In addition, there is the element of the significant period of cumulative time until each of the children turn 18. There is something like 55 years of cumulative parenting time until each of the four children attain the age of 18 years. 95. Sub-paragraph (c) of paragraph 13.2(4) of [the Direction 79] involves an assessment of any negative impact of [Mr Tuioti's] prior conduct, and any likely future conduct, on his four minor children in Australia. [Mr Tuioti] speaks of certain adverse impacts on his minor children were he to be removed. This is his evidence only and there is nothing else in the material from either a lay or expert witness to corroborate any such adverse impact or impacts. It cannot be denied that his removal from Australia would, to an extent yet to be measured, adversely impact the four children. The only reasonable finding for present purposes is that this sub-paragraph (c) merits a slight allocation of weight in favour of a finding that restoration of [Mr Tuioti's] visa status to remain in this country is in the best interests of his four children. 96. Sub-paragraph (d) of paragraph 13.2(4) of [the Direction 79] refers to an assessment of the likely effect that any separation of the four minor Australian children from [Mr Tuioti] would have on them, taking into account [Mr Tuioti's] ability to maintain contact in other ways. There are two aspects as to how this factor can be discussed. Although slight reference was made by the mother of children 1 and 2 about the good quality of [Mr Tuioti's] parenting when he was not involved in drugs, it should also be noted that she has cut off all contact between him and those children due to his drug issues. 97. Were he to be removed, [Mr Tuioti] would return to New Zealand. In that country, he would be able to avail himself of electronic communication and he would potentially be able to communicate with his minor children in Australia by SMS and/or social media platforms. It is clear, therefore, that [Mr Tuioti] would be able to maintain contact with the children in ways other than personal contact. Accordingly, this sub-paragraph (d) is of neutral weight in assessing whether return of [Mr Tuioti's] visa would be in the best interests of the four minor children. 98. Sub-paragraph (e) of paragraph 13.2(4) of [the Direction 79] asks whether there are other persons who already fulfil a parental role in relation to the children. Clearly, there are. Despite what he many [sic] have said in the Personal Circumstances Form, it is clear that: • Children 1 and 2 are primarily parented by their mother, [the mother of Children 1 and 2]; • [Child 3] is primarily parented by her mother who is unlikely to promote any parental role by [Mr Tuioti] in circumstances where she has sought Domestic Violence Protection from him; • [Child 4] appears to be in the care of that child's aunt due to the child's mother's drug issues. There is no evidence that the Department of Child Safety, Youth and Women has ever contemplated the allocation of partial or sole care of [Child 4] to [Mr Tuioti] upon his release from custody or detention; and • There are no Family Court orders or parenting plan between [Mr Tuioti] and any of the three mothers recording any parenting rights he may have in relation to any of the four children. 99. Having regard to the combined evidence of [Mr Tuioti] and the mother of children 1 and 2, this sub-paragraph (e) is, at best, of slight weight in favour of [Mr Tuioti] in assessing whether restoration of his visa status is in the best interests of his four minor children in Australia. 100. Sub-paragraph (f) of paragraph 13.2(4) of [the Direction 79] requires the Tribunal to consider any known views of the children about their separation from [Mr Tuioti], having regard to their age and maturity. As already alluded to, there is no independent or expert evidence before the Tribunal that any of the four minor children are exhibiting behaviours indicative of adverse views they may have regarding the physical removal of their father from their lives. With particular reference to Children 3 and 4, it is difficult to conceive of any such reliable evidence given those children are each approximately one year old. 101. Accordingly, no measure of weight can be allocated to this sub-paragraph (f) in circumstances where the views of none of the four minor children are known and where there is nothing to suggest that the prolonged, physical absence of their father from their lives thus far or in future has had, or will have, any adverse impact on them. 102. Sub-paragraph (g) of paragraph 13.2(4) of [the Direction 79] looks to evidence that [Mr Tuioti] has abused or neglected the children in any way, including physical, sexual, and/or mental abuse or neglect. There is no such evidence in the material. This factor has no weight and is not determinative of any finding about Primary Consideration B. 103. Sub-paragraph (h) of paragraph 13.2(4) of [the Direction 79] looks for evidence that the child has suffered or experienced any physical or emotional trauma arising from [Mr Tuioti's] conduct. There is no independent evidence of any such trauma suffered by the two eldest children, children 1 and 2. Children 3 and 4 are simply too young to be able to relay any reliable information about any such emotional trauma. 104. I am of the view that this sub-paragraph (h) - in the absence of any independent and expert evidence about any physical or emotional trauma suffered by children 1 and 2 as a result of [Mr Tuioti's] offending conduct during their lives, is of no weight and is not determinative of any finding about this Primary Consideration B. Conclusion: Primary Consideration B 105. Having regard to: • the evidence of [Mr Tuioti] in his Personal Circumstances Form which propounds either a prior but now discontinued, or otherwise largely uninvolved and uncommitted, parental relationship with the four minor children; • the evidence of the mother of children 1 and 2 - particularly that [Mr Tuioti's] unresolved issues with drugs have caused her to cease all contact between [Mr Tuioti] and the children since 2016; • the evidence around the mothers of children 3 and 4 which, on any reasonable view, demonstrates [Mr Tuioti's] almost complete lack of parental involvement in the lives of those two children and the unlikely prospect that this position will change in the foreseeable future; • the reality that [Mr Tuioti] has never met children 3 or 4 and has been physically absent from the lives of children 1 and 2 for at least three years, representing between one third to one half of the lives of those two children thus far; • the reality that each of the four children are primarily parented by other people and that any future parental role between [Mr Tuioti] and each of the four children can be conducted via electronic (and associated) means; the complete absence of any independent or expert evidence about the adverse impact upon children 1 and 2 as a result of [Mr Tuioti's] physical absence from their lives thus far; the slight level of weight I have attributed to factors (b), (c), and (e) of paragraph 13.2(4) of [the Direction 79]; - I am of the view that the best interests of [Mr Tuioti's] four minor children in Australia is a factor that does weigh slightly in favour of revocation of the decision to cancel the subject visa. I qualify this finding by saying the weight attributable to this Primary Consideration B is of a slight level and does not, in any way, outweigh the very heavy weight I have attributed to Primary Consideration A. (Citations omitted.) 25 It is clear that the Tribunal concluded (at [105]) that the best interests of Mr Tuioti's four minor children was a factor that weighed only slightly in favour of revocation of the decision to cancel Mr Tuioti's visa. 26 That reasoning and conclusion was reasonably open to the Tribunal on the basis of the evidence and material before it and having regard to the factors that [13.2(4)] of Direction 79 required to be taken into account. The weight to be given to a mandatory relevant primary consideration in Direction 79 is a matter for the Tribunal: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 per Mason J (as the Chief Justice then was) (at 41). The fact that different minds may differ as to the weight that should be given to the best interests of minor children in Australia does not give rise to an error on the part of the Tribunal: AZAFQ v Minister for Immigration and Border Protection (2016) 243 FCR 451, where Allsop CJ, Robertson and Griffiths JJ (said (at [58]): As to the other matters which are particularised in the amended notice of appeal in support of ground 1, it is evident from the Minister's statement of reasons that the Minister took into account matters such as the fact that the appellant has never been a citizen of South Sudan and has no ties, including family ties, with South Sudan; that he would face hardship if he were to return to South Sudan; and that there would be a negative impact on the appellant's family and his siblings if he were removed from Australia. The Minister weighed these matters against a range of other considerations which he took into account but he ultimately concluded that the appellant's visa should be cancelled. Minds might differ as to the merits of that conclusion but the appellant has not established that the Minister's cancellation decision lacked an intelligible justification. Ground 1 is rejected. 27 The Tribunal's conclusion that the best interests of Mr Tuioti's four minor children weighed only slightly in favour of revocation of the decision to cancel Mr Tuioti's visa did not lack an evident and intelligible justification. Others may attribute greater weight, but the fact that this Tribunal did not (and for reasons very fully explained) does not amount to jurisdictional error. No jurisdictional error was made out for the purpose of ground 1.

Ground 2 28 The second ground of the application is that the Tribunal is said to have erred by failing to acknowledge Mr Tuioti's rehabilitation and efforts. Again, no particulars have been provided by Mr Tuioti in relation to this ground of the application. 29 It is apparent, however, that the Tribunal plainly did have regard to the rehabilitation efforts made by Mr Tuioti. When considering the likelihood of Mr Tuioti engaging in further criminal or other serious conduct as required by [13.1.2(1)(b)] of the Direction 79, the Tribunal referred to the evidence provided by Mr Tuioti that he had completed certain programs and courses and that he had claimed to be a reformed person, now of good character. 30 The Tribunal took into account that evidence, but was also concerned that there was nothing in the material to convince it that Mr Tuioti had completed any courses directed to resolving his issues with unlawful drugs. While Mr Tuioti claimed to be drug free since his incarceration, it was noted that this period without drug use had occurred in a highly regulated environment. The Tribunal concluded (at [71]) in the following terms: He speaks of having completed certain programs and/or courses and he claims to be a reformed person who is now of good character. While there may be evidence of him completing those courses, there is no clear evidence of how they may have changed his preponderance towards offending, especially in the realm of unlawful drugs. Of more concern is the reality that his suggestion of being a changed man has not been tested in the community. Also of concern is the reality that although he may have completed a course about domestic violence, there is nothing in the material to convince me he has completed any courses directed to resolving his issues with unlawful drugs. Further, while [Mr Tuioti] claims to have been drug-free since his incarceration, he has been in a highly controlled and supervised environment in either criminal custody or immigration detention. This is very different to him being at large in the Australian community. It is therefore difficult for me to have any measure of confidence that he will remain drug-free if returned to the community. 31 Additionally, the Tribunal had regard to Mr Tuioti's evidence about his rehabilitation in considering the factor of the expectations of the Australian community (at [13.3(1)] of Direction 79). The Tribunal said (at [107]): … • [Mr Tuioti's] evidence about rehabilitation, put at its highest, is that he is yet to undergo anything remotely approaching rehabilitative care, management and control of his substance abuse issues. In these circumstances, the Tribunal cannot be reasonably expected to form any definitive view about [Mr Tuioti's] risk of reoffending other than it remains as it was prior to his most recent removal from the Australian community in early 2018; • there is no definitive, independent or expert evidence before the Tribunal: (i) providing any diagnosis of psychological or other factors predisposing [Mr Tuioti] to abuse unlawful drugs and to offend in a very serious way; (ii) that those factors have been identified and are now the subject of an externally imposed and monitored regime of remedial therapy, treatment and management; (iii) that [Mr Tuioti] has demonstrated any convincing level of insight into his offending, so that (iv) this Tribunal can confidently find there is either no real risk of him reoffending, or that his risk of re-offending is low. … 32 A shortcoming in Mr Tuioti's assertion of his efforts at rehabilitation is that the preponderance of the objective evidence before the Tribunal does not support his claim. Mr Tuioti was unable to or failed to provide any objective, independent expert or non-expert evidence that might have assisted him on this issue. There is no basis for the claim asserted by ground 2 that the Tribunal failed to acknowledge Mr Tuioti's rehabilitation and efforts. The Tribunal did examine what if any efforts had been made but was not persuaded, for the rational reasons it gave, that it was possible to reach any conclusion favourable to Mr Tuioti on this topic. The ground must fail.

Ground 3 33 The third ground of review is that the Tribunal is said to have erred in stating that Mr Tuioti does not respect the lawful authority governing the community to which he seeks to be returned. Mr Tuioti complains that the Tribunal simply assumed that factor and failed to ask him if, today, he respected lawful authority. 34 The statement by the Tribunal, which is the subject of this ground of application, appears at [57] of the Tribunal's reasons in relation to assessment of the nature and seriousness of Mr Tuioti's criminal offending or other conduct to date as required by [13.1(2)] of Direction 79. At [57] of the Tribunal's reasons it said: First, despite receiving the benefit of, initially, non-custodial terms, he has failed to experience any insight and/or resulting deterrent effect such that his offending either ceases or remains at a low level of seriousness. Second, he does not respect the lawful authority governing the community to which he seeks to be returned. He has multiple convictions for obstructing and assaulting police officers. He has multiple convictions for breaching the terms of accommodating orders such as bail and similar orders compelling him to do something. (Citation omitted.) 35 This statement must be seen, the Minister asserts, in its proper context, namely, that the Tribunal's consideration was of the cumulative effect of Mr Tuioti's repeated offending and how such an effect does or does not demonstrate the seriousness of that offending, as required by [13.1.1(1)(f)] of Direction 79. The Tribunal discussed its approach to this consideration in its reasons (at [56]) where it said: Sub-paragraph (f) of paragraph 13.1.1(1) of [the Direction 79] concerns itself with an examination of the cumulative effect of an Applicant's repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. To my mind, there are three detectable themes arising from a longitudinal understanding of [Mr Tuioti's] criminal history. 36 It follows that the statement by the Tribunal (at [57]) to which ground 3 is directed is concerned with the cumulative effect of Mr Tuioti's past repeat offending and how the total effect of that offending demonstrates the seriousness of that offending. It was, in effect, a statement about what the offending, itself, reveals about Mr Tuioti at the time of the offending and the impact of that upon the seriousness of that offending. The determination of the seriousness of Mr Tuioti's offending and the cumulative effect of that offending did not require the Tribunal to conduct an interrogation of Mr Tuioti as to his present attitude towards respecting the lawful authority governing the community, that is, his attitude as expressed in the Tribunal hearing to which the answer might be thought to be obvious. 37 Logically the Tribunal examined Mr Tuioti's response to initial non-custodial orders as part of that analysis and in his repeated disregard for what were in effect last warnings, concluded that he was not the sort of person who had demonstrated in his actual history, respect for lawful authority. Any suggestion that the Tribunal approached this on the wrong basis such that it committed jurisdictional error is not made out.

Ground 4 38 The fourth ground pressed by Mr Tuioti is that the Tribunal is said to have erred by stating 'given his unresolved issues with illicit drugs …'. Mr Tuioti stresses that he has demonstrated the removal of drugs from his current life and he has completed courses to that effect. He says the Tribunal failed to ask him if he continued to use drugs and the use of the word 'unresolved' was a clear error. 39 The context in which the Tribunal expressed 'unresolved issues with illicit drugs' is at [107] of its reasons, where it said: … • his offending derives from unresolved issues with unlawful drugs. Without the benefit of any independent expert evidence, those unresolved issues can be (inexpertly) stated as: (1) a predisposition towards abusing unlawful drugs; and (2) a resulting predisposition towards offending in the realm of unlawful drugs as well as (3) a predisposition towards refusing to respect lawful authority and the personal ad [sic] property rights of others; … 40 To similar effect, the Tribunal (at [67]) considered Mr Tuioti's future conduct to be 'unknown and unpredictable' based on a consideration of the nature and seriousness of his past offending and with respect to his unresolved issues with illicit drugs. 41 There is no jurisdictional error disclosed by the Tribunal's statement that the offending by Mr Tuioti derives from unresolved issues with unlawful drugs. Mr Tuioti himself says that the past offending was so derived. Whether Mr Tuioti was or was not still a drug user at the time of the Tribunal's decision was not relevant to the issue as to whether his past offending was as a result of unresolved issues with unlawful drugs at the time of that offending. 42 It must be observed, and indeed stressed, that again there was no independent objective evidence to the contrary relied upon by Mr Tuioti. The Tribunal acknowledged Mr Tuioti's claim that he had been drug free since his incarceration, expressed by the Tribunal in its reasons (at 71]) and did not find to the contrary. Notwithstanding this, the Tribunal concluded (at [71]), for the reasons it set out, that it was difficult for it to have any measure of confidence that Mr Tuioti would remain drug free if he returned to the community. This conclusion was not illogical or irrational. There was a basis given for the conclusion. Mr Tuioti may disagree with the conclusion and its basis, but absent demonstrating illogicality or unreasonableness, it cannot be concluded that the reasoning of the Tribunal was not open to it. Ground 4 cannot succeed.

Ground 5 43 With regard to this ground, Mr Tuioti says that the Tribunal's statement that the 'weight … is of a slight level' does not consider his four minor children's best interest. 44 This, in substance, is simply a repetition of ground 1 and, for the same reasons as ground 1 fails, ground 5 must fail.

CONCLUSION 45 For all these reasons, the application must be dismissed with costs. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.