MIGRATION - Class BF transitional (permanent) visa - mandatory cancellation - non-revocation - failure to pass the character test - Ministerial Direction No 65 - serious criminal convictions - protection of the Australian community - expectations of the Australian community - best interests of minor children - strength nature and duration of ties - extent of impediments if removed - decision affirmed

Crimes (Sentencing Procedure) Act 1999 (NSW)

Migration Act 1958 (Cth)

Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)

Migration Reform (Transitional Provisions) Regulations 1994 (Cth)

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Australian Citizenship Instructions (Cth) issued 1 July 2014

Direction No. 65, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA

1. Mr Dharma is a 41 year old Indonesian citizen. He first came to Australia in January 1991 - at the age of 14 - moving from an unhappy home with his mother and stepfather to live with his father, step mother and younger half brother. In 1992 he obtained a permanent entry permit, but went back to Indonesia in February 1994 when his father returned there. He came back to Australia in July 1994, and has lived here ever since. After September 1994 (as a result of the Migration Reform (Transitional Provisions) Regulations 1994) his permanent entry permit continued in effect as a Class BF transitional (permanent) visa.
2. Mr Dharma continued to hold such a visa until a 25 August 2017 cancellation decision. On 8 May 2018 a Ministerial delegate refused an application to revoke the visa cancellation decision. That refusal decision is the subject of Mr Dharma's review application in the present proceedings.

THE MIGRATION ACT PROVISIONS

1. The Minister has statutory discretions to refuse to grant, and to cancel, a visa, unless satisfied a non-citizen visa applicant or holder satisfies the statutory "character test":- Migration Act 1958 ("MigAct58") s 501(1)&(2). (A person who has been sentenced to (one or more) terms of imprisonment totalling at least 12 months has a "substantial criminal record" and cannot satisfy the "character test":- see MigAct58 s 501(6)(a) & 501(7)(c)&(d).) Up until the December 2014 commencement of the Migration Amendment (Character and General Visa Cancellation) Act 2014, where a non-citizen prisoner had a "substantial criminal record" the Minister had a discretion about whether or not to cancel their visa. Since December 2014 the Minister must (i) cancel such a non-citizen's visa, (ii) provide particulars of the reasons for the cancellation decision and, (ii) invite the non-citizen prisoner to make representations about revocation of the cancellation:- see MigAct58 s 501(3A), 501CA(2)&(3). The Minister may revoke a mandatory visa cancellation decision (in response to timely representations) if satisfied of either of two matters - (i) that the non-citizen passes the "character test" or, (ii) that "there is another reason why" the cancellation decision should be revoked:- see MigAct58 s 501CA(4).
2. The cancellation revocation discretion, whether exercised by a Ministerial delegate or this Tribunal, is subject to compliance with any current Ministerial direction authorised by MigAct58 s 499(1) & (2A). The relevant direction is "Direction no 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA" ("Direction no. 65").

1. Direction no. 65 is a publicly available document, but it is useful (in the context of review proceedings of the present kind) to outline its content and effect. The Preamble in Section 1, cl 6 details the objectives of the relevant MigAct58 provisions. It then requires the relevant discretion (whether relating to visa grant, cancellation or revocation cancellation) to be exercised after consideration of "the specific circumstances of the case":- cl 6.1(2) &(3). The immediately following part of the Preamble provides a statement of "general guidance" for decision-makers. It commences with a declaration of governmental commitment to "protecting the Australian community from harm as a result of criminal activity". (The declaration, and other parts of the Direction, also refer to protection from "other serious conduct". It is not necessary, for present purposes to consider what that concept might entail.)
2. The Preamble then sets out "principles" described as providing "a framework" within which decision-makers should operate in exercising the relevant statutory function in individual cases. The "principles" are stated to be of "critical importance" in furthering the objective of that commitment. The principles themselves are said to "reflect community values and standards" relevant in assessing whether "the risk of future harm from a non-citizen is unacceptable":- cl 6.2(1).
3. As set out in Direction no. 65 the "principles" include the following propositions:
   • (a) the character of a non-citizens' lawful presence in Australia is a conditionally available statutory right (described as a "privilege") to which attach corresponding expectations of law abiding respectful conduct, and harmlessness to both individuals and the Australian community:- cl 6.3(1)
   • (b) the commission of "serious crimes" (non-exhaustively exemplified as violent or sexual offences, or those where victims were disabled, elderly or children) attracts a general community expectation of visa refusal or cancellation:- cl 6.3(2)&(3)
   • (c) the range of tolerance for "criminal or other serious conduct" by non-citizens, will be influenced by the nature of the conduct, the period of time the non-citizen has lived in Australia and the extent to which they have "been participating in, and contributing to, the Australian community". The degree of tolerance is stated to be "low" where the visa holder's Australian community presence has been "only for a short period of time". It is described as "higher", where the person has lived in Australia since an early age, or for most of their life:- cl 6.3(5).
   • (d) the extent and nature of a non-citizen's positive contribution to the Australian community are relevant considerations in the exercise of the statutory function:- cl 6.3(7)
   • (e) any adverse impact of visa cancellation on a non-citizen's Australian resident minor children, and on other family members, is also a relevant consideration to which decision makers are required to have regard:- cl 6.3(7)
   • (f) in "some circumstances" either the nature of the conduct, or the risk of associated harm, may be so serious as to be unacceptable, despite the existing of "strong countervailing considerations":- cl 6.3(4).
4. Section 2 of Direction no. 65 deals more specifically with the exercise of the revocation discretion. It begins with a general requirement that decision-makers (i) exercise the discretion "informed by the principles" (ii) take into account "the primary and other considerations relevant to the individual case", and (iii) recognise that primary considerations "should generally" be given greater weight:- cl 7 & 8. Part C of Section 2 then articulates the "primary" considerations" and some of the "other" considerations, to which regard must be had. The "primary" considerations are:-
   • (a) the protection of the Australian community - ie., the governmental commitment declared in the Preamble;
   • (b) the expectations of the Australian community; and
   • (c) the best interests of Australian resident minor children.
5. Two of the "other" considerations specifically discussed in Section 2, Part C are of significant potential relevance to Mr Dharma's circumstances. They are:-
   • (a) the strength, nature and duration of his Australian ties;
   • (b) the nature and extent of any difficulties he would be likely to encounter as a result of being returned to Indonesia.

1. Section 2 Part C of Direction no. 65 does not explicitly stipulate "low tolerance" of criminal conduct in the exercise of the revocation discretion. But limited tolerance of criminal conduct is a corollary of the protective commitment declared in both the General Guidance provided in cl 6.2 of Direction no. 65, and the corresponding mandatory protective consideration set out in cl 13.1. That consideration requires regard to both the "nature and seriousness" of the person's past conduct and to the risk to the Australian community in the event of "further offences".
2. The basis for the appropriate calibration of conduct as "serious" is elusive. Direction no. 65 repeatedly uses the disjunctive expression "criminal activity or other serious conduct". In so doing it might be taken to convey that all criminal activity should be regarded as "serious":- see eg., cl 6.2(1), 6.3(5), 6.3(6); 9.1(1), 9.1.2(2), 13.1(1), 13.1.2(2). But that possibility seems to be contradicted by other parts of Direction no. 65, which implicitly disavow any such necessary suggestion. Clause 13.1.1(1)(a), for example, contemplates that a wide range of offences "may" be considered serious, and implies the corollary proposition that such a characterisation may not be appropriate for some offences. (I note that in the related context of citizenship eligibility offences conceived of as "minor" have been described as matters involving "shoplifting, traffic offences and others that did not result in a formal conviction or a sentence":- see the former Australian Citizenship Instructions at Chapter 10.5.2.). Elsewhere, Direction no. 65 uses the expression "serious crime":- see eg., cl 6.3(2), 6.3(3). That expression is not defined in either MigAct58 or in the interpretation annex to Direction no. 65. There are definitions of "serious" Australian and foreign offences in MigAct58 s 5. Their general thrust is to include offences involving violence, serious property damage and serious drug offences, where they are punishable by at least a maximum three year term of imprisonment. In addition to that possible statutory insight, the exegesis in cl 13.1.1(a) & (b) of Direction no. 65 points to the likelihood that "serious crime" includes violent and sexual crimes, as well as crimes against officials and vulnerable victims. The further discussion in clause 13.1.1(c)-(d) & (f) of Direction no. 65 requires that both repeated offending, and particular sentences, can provide a basis for characterising offences as relevantly serious.

1. Mr Dharma has a long history of offences. Up until his incarceration in February 2007, his offences had preponderantly been dealt with by either fines or good behaviour bonds. The details of his "pre 2007" convictions are summarised in the Schedule 1 to these reasons. The offences he committed subsequently involved sentences that both cumulatively, and in seven individual instances, were for 12 months or more - and resulted in him having a "substantial criminal record". Those offences, with their corresponding convictions and sanctions, are summarised in the Schedule 2 to these reasons. In each schedule I have (i) included the approximate date of the offending conduct (where it is disclosed in, or can reasonably be inferred from, the available evidence), (ii) indicated Mr Dharma's age (at the time of the formal conviction), (iii) grouped the various offences according to what I regard as their most appropriate characterisation, and (iv) indicated (by the shaded entries) dates of the various periods when Mr Dharma was incarcerated.
2. The information contained in the Schedules provides the basis for the following propositions:-
   • (a) Prior to 2005 (by which time he was 28 years old) Mr Dharma committed approximately 31 offences
   • (b) Those offences can reasonably be categorised as involving 17 dishonesty related matters (about 11 of which apparently involved theft or unlawful possession of property) and five drug offences.
   • (c) Between the ages of 30 and 40 (ie, from 2007 to 2017) Mr Dharma committed approximately 47 further offences.
   • (d) The offences Mr Dharma committed after 2005 can reasonably be categorised as involving 26 dishonesty related matters (about 23 of which apparently involved theft or unlawful possession of property).
   • (e) The prison sentences imposed on Mr Dharma in relation to his "post 2007" offences cumulatively totalled about 190 months (or almost 16 years) - of which only 30 months were the subject of suspended sentences.
   • (f) On the most recent occasion when Mr Dharma was the subject of suspended sentences (3 November 2016) he re-offended during the suspension period.
   • (g) Mr Dharma was incarcerated for (i) all but about eight months of the four year period from February 2007 to January 2012, (ii) more than half of 2013, and (iii) most of 2017. (He was taken into immigration detention in October 2017.)
3. Mr Dharma contended in these proceedings that the offences he committed after his March 2011 prison release never involved any of the qualities that merited their description as "serious" within the category of emphasis in cl 13.1(a)&(b) of Direction no. 65. There is force in that contention, but assessment of its ultimate significance requires regard to (i) his 2007 robbery in company offence, (ii) previous warnings he has received, and (iii) the circumstances of his most recent convictions.

1. The October 2008 sentencing remarks record that this was an offence that occurred after Mr Dharma and another person had observed a successful poker machine player at a social club, and followed him when he left the club. Mr Dharma's associate first challenged the departing gambler to a fight, knocked him to the ground, produced a knife and took his wallet. After that initial assault the gambler ran away, but Mr Dharma and the other person gave chase. They succeeded in catching up with him. Both then punched and kicked him, knocked him to the ground, and continued their assault when he was on the ground. They then found, and took, the $1,500 of gambling winnings the victim had in his pocket.
2. The sentencing judge dealt with the matter on the basis that, although Mr Dharma had a significant history of illicit drug use and his participation in the assault was money motivated (perhaps because of his drug use), he had not been significantly affected by either alcohol or drugs. The judge also noted that, according to a presentence report (which included the results of psychometric testing) Mr Dharma had not been experiencing any significant symptoms of emotional, cognitive or perceptual disorder, and had a "low to moderate" risk of re-offending. The context of that assessment appears to have been provided by (i) Mr Dharma's participation in a six week drug and alcohol program in early 2008, (ii) his reported "keen awareness" of the rehabilitation issues discussed in the program, (iii) his expressed desire to engage with support services, (iv) the support of his partner and, (v) Mr Dharma's subjectively expressed desire to support his partner and children after his release from prison.
3. In sentencing Mr Dharma to a four year and three month period of incarceration (although with a non-parole period that expired in August 2009) the judge characterised the circumstances of the offence as falling "towards the lower end of the middle range of objective seriousness for offences of this type", and regarded Mr Dharma as having shown "only limited remorse for his conduct". Consistent with that assessment, and Mr Dharma's long history of substance abuse, the sentencing judge expressed the view that he would require "an extended period of supervision". That view influenced the rather lengthy (almost two year) period of parole involved in the actual sentence terms.

1. Direction no. 65 requires regard to be had to the fact that Mr Dharma committed almost 50 of his offences after he was first officially warned of the visa cancellation risk to which his conduct exposed him:- see cl 13.1.1(1)(g).
2. The first occasion when Mr Dharma was warned about his visa cancellation risk was between April and June 2009. The second such occasion was between November 2010 and January 2011. On each of those occasions (under the statutory regime that applied prior to the 2014 legislative amendments that introduced the mandatory cancellation provisions) Mr Dharma was given formal notice of intention to consider cancellation of his visa. He made written representations in response and signed two acknowledgements of the receipt of formal warnings of the risk of visa cancellation if he continued to reoffend. Mr Dharma additionally received a formal counselling letter in relation to his visa cancellation risk in December 2011.
3. The first notice that Mr Dharma received in April 2009 followed his sentencing on 31 October 2008 for the robbery in company offence. It was a formal notice of intention to consider cancellation of his visa. At that time Mr Dharma was in custody serving the 30 month non-parole period of his 51 month custodial sentence. Mr Dharma's representations in response to that notice emphasised (i) his more than 18 year period of residence in Australia, (ii) the fractured parental relationships which he claimed had adversely affected his upbringing, (iii) his 10 year domestic relationship with his Australian citizen partner, (iv) his two young children (who were then aged 7 and 9) and, (v) that the experience (of his conviction, incarceration and exposure to the risk of visa cancellation) had "definitely opened my eyes".
4. About four weeks after submitting his response Mr Dharma received notification that his visa would not be cancelled, but he was formally warned that further offending could result in re-consideration of his visa status. Following that warning Mr Dharma signed a formal acknowledgement of its receipt. The acknowledgement contained the statement that "I understand that I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered".
5. The second notice Mr Dharma received in November 2010 when he was back in prison following the revocation of his parole and his September 2010 conviction for breaking and entering. In his January 2011 response to that notice Mr Dharma explained the (somewhat complicated) circumstances that had led to his then current incarceration. His explanation involved the following propositions
   • (a) he had been released on parole in August 2009
   • (b) shortly afterwards he had been charged with the 2006 offence of breaking and entering
   • (c) he had been taken into custody in March 2010 on goods in custody charges, subsequently sentenced on the 2006 break and entry charge, and thereafter (following the revocation of his parole in relation to the robbery offence) continued in custody until May 2011
   • (d) because of the circumstance that his September 2010 conviction for the breaking and entering matter related to events in 2006, and because he characterised his goods in custody offence as unintentional, he asserted that "technically" he had not re-offended after receiving his previous formal warning letter.
   • (e) he asserted that he had taken his previous warning "on board very seriously", he had been progressing very well in addressing his negative behaviour, and he had complied with all his parole conditions and participated in drug counselling
   • (f) he again emphasised his long period of Australian residency, his domestic relationship and his two children.
   • (g) he expressed the view that he felt he had been given a chance to prove that he was willing, determined and able "to live a normal life and do the right thing".
6. About a fortnight later Mr Dharma was informed that his visa was not being cancelled. But he was again formally warned of the visa cancellation risk associated with further offending. He submitted a formal acknowledgement of the warning.
7. The third notice that Mr Dharma received, in December 2011, followed his December 2011 convictions, and was given to him whilst he was serving a six month custodial sentence for those offences. The notice itself informed Mr Dharma that no current consideration was being given to the cancellation of his visa. However the letter was a formal counselling letter. Its stated purpose was to warn him that "any further criminal convictions ... could result in consideration of the cancellation of your visa".

1. At the time of the 2017 offences that were the subject of his April 2017 convictions Mr Dharma was already subject to two eight month suspended sentences and two twelve month good behaviour bonds. The additional February 2017 offences involved shoplifting and goods in custody. The sentencing submissions proffered on his behalf at the Local Court hearing on 3 April 2017 emphasised that he had a long-standing issue with drugs, particularly ice and heroin, and his ongoing need for rehabilitation. The sentencing magistrate obviously had some sympathy for the relevance of Mr Dharma's history of drug abuse and unsuccessful attempts at rehabilitation. Nevertheless the circumstances of his February 2017 offences were aggravated by the fact that they constituted a breach of both his good behaviour bonds and the terms under which he had been released subject to suspended sentences. The sentencing magistrate's views, which effectively resulted in a six month custodial sentence and the contemplation of a 12 month period of parole supervision, were in the following terms:

given that you were on a section 12 bond at the time for the current offences, they are aggravated by the fact that you were on a suspended sentence for similar matters, matters of dishonesty. What I intend to do today is effectively you will be released in the latter part of the year and then you will spend nearly 12 months on parole in the hope that you clean up your drug problems, because if you do not, you will be back in custody for a fairly lengthy period of time.

1. The assessment required by the primary consideration in clause 13.1 of Direction no. 65 appears to focus on the question of "unacceptable risk of harm to individuals, groups or institutions in the Australian community" and to emphasise that the acceptability of the risk is inversely related to both the degree of likelihood of further harmful offences, and the apprehended significance of that harm:- see cl 13.1.2. Taking those considerations in reverse order, there is some merit in Mr Dharma's emphasis on the proposition that for the past decade his offences have not involved either the threat or the actuality of personal injury. The proposition seems to be subject to two qualifications. The first involves the "armed with intent" offence conviction in December 2011. The second involves the apparently minor (because of the penalty imposed) matter of his October 2014 assault conviction. In the light of those qualifications, the proposition loses part of its force. Moreover it has also to be evaluated against the background circumstances of Mr Dharma's 2007 robbery offence. It also has to be evaluated against the background of Mr Dharma's repeated offending, and the contribution that his long standing substance abuse has made to that repeated offending.
2. Consistent with the sentiments expressed in the April 2017 sentencing remarks, and particularly the considerations that influenced the sentencing magistrate's imposition of a 12 month period of supervision, the proper conclusion is that Mr Dharma is at significant risk of re-offending. His offences, were they to re-occur, are more likely than not to be in the same category of property and dishonesty offences that have been typical of his post 2007 offences. In that respect his reasonably apprehended offending risk is at the lower end of the constellation of offences to which the primary protective consideration requires regard. But Mr Dharma's history, and his hitherto unsuccessful battle with his long standing illicit substance addiction, demonstrates that the risk cannot confidently be confined to that category of offences. (In referring to that unsuccessful battle, I note the repeated instances when Mr Dharma has been afforded the opportunity - by being subjected to good behaviour bonds under s 9 of the C_rimes (Sentencing Procedure) Act 1999 (NSW)_ s9) - to undertake drug and alcohol counselling and rehabilitation.) Accordingly, the first primary consideration points in favour of maintaining the mandated visa cancellation decision.

1. I have referred earlier to the principle statement of an expectation that a visa should be refused (or cancelled) where the person has committed "serious crimes": see cl 6.3(2). The imperative implicit in the use of "should" in cl 6.3(2) is expressed in the context of a description of community expectation. As such, and in the context of the other principle statements, it is not an inflexible direction that supplants consideration of the totality of primary and other considerations. But the relevance of community expectation, as an important primary consideration, is patent in the content of cl 13.3. It is in the following terms:

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

1. In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, Mortimer J said that this description of "community expectation" in Direction no. 65 operated as a prescriptive statement. Her Honour said that

[76] In substance this consideration is adverse to any applicant. ... it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the "expectations" about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to "tolerance") the Australian community's "expectations" are defined only in one particular way: namely, that the Australian community "expects" non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

1. The thrust of Mortimer J's observation was to emphasise the prescriptive nature of the concept of community expectation that cl 13.3 sets out. But the emphasis in cl 13.3 also needs to be reconciled with the permissive tolerance contemplated by the statement of principle in cl 6.3(5). That statement, despite the earlier acknowledgement of the general expectation of cancellation where a visa holder has committed serious crimes, contemplates the possibility that Australia "may afford a higher level of tolerance of criminal or other serious conduct" in relation to a person who has lived in Australia either from a very young age, or for most of their life: see cl 6.3(5).
2. Against that background there are four significant aspects of the wording of cl 13.3. The first is the emphasis it places on the visa holder's compliance with the expectation implicit in the visa grant - conformity with Australian law. That emphasis necessarily includes concern about harmful criminality, but it extends to lawful behaviour, and in that respect evokes the concepts of respect and compliance contained in the first of the "principles" declared in cl 6.3. The second is that cl 13.3 does not require the inflexible refusal of visa status. The third is that it nevertheless contemplates that "non-revocation may be appropriate" because of the nature of a particular offence and, inferentially, even in the absence of apprehensions of unacceptable risk of repetition of the offending conduct. The fourth is the requirement, in the last sentence, that decision makers "should have due regard to the Government's views in this respect." That requirement, somewhat oblique in its wording, is probably best interpreted as an allusion back to the second of the statements of principle - in cl 6.3(2).
3. It is in this context that Mr Dharma's three previous warnings, and his explicit acknowledgement of two of them, have particular significance. His long period of Australian residence, particularly in the light of his comparative youth when he first arrived in Australia in 1991, provide an appropriate circumstance for extending a degree of tolerance towards his behaviour. But that tolerance must be regarded as exhausted after three previous warnings, and especially after Mr Dharma's unambiguous previous acknowledgments of the significance of two of those formal warnings. Community expectation, as articulated in Direction no. 65 points clearly and strongly in favour of maintaining the visa cancellation decision.

1. In August 1999 Mr Dharma established a domestic relationship with his Australian citizen partner. That relationship ultimately broke down. In his 18 September 2017 representations to the Minister, Mr Dharma said that he and his partner had separated at some time in 2014 / 2015. In his oral evidence he claimed that the separation occurred rather later (at the end of 2015 or early 2016). But the earlier timing he first gave seems more likely - because (i) he linked it to the subsequent abandonment of his employment (in May 2015) and (ii) that timing is consistent with his October 2014 domestic violence assault conviction. Whatever the precise timing of the separation, the point of present significance is that the relationship produced three sons. They are currently aged 17, 15 and 6).
2. In his written statement in the present proceedings Mr Dharma placed significant emphasis on the welfare of the three boys and repeatedly expressed his concern about the adverse impact his removal to Indonesia would have on them. He said he did not want them to go through what he had been through as a child growing up without a father.
3. Notwithstanding that concern, Mr Dharma also said that the two older boys were doing well at school and that he was extremely proud of their achievements. In relation to his youngest son, he expressed concern that he was at an age where psychologically and emotionally he had a particular need for a father in his life. Mr Dharma pleaded that his past mistakes should not adversely affect the best interests of his three sons.
4. Despite the concern Mr Dharma expressed for the three boys, he provided no independent information about any of them. He explained that he had deliberately chosen not to enlist their support, or that of his former partner. He said this was because he was acutely aware of the turmoil and disappointment his past behaviour had occasioned, and he regarded his present difficulties as matters he had personally caused and was responsible to address on his own.
5. Mr Dharma's explanation for not involving his former partner, and the three boys, was surprising. Moreover, it potentially deprived the Tribunal of relevant information in objectively assessing the mandatory consideration of the reality of each child's best interests. In order to attempt to overcome that difficulty, I successfully encouraged the Minister's representative at the hearing to contact Mr Dharma's former partner. That contact produced the following information:-
   • (a) she was aware of Mr Dharma's visa cancellation, and the nature of the present proceedings - although not of the actual hearing
   • (b) she had ended her relationship with Mr Dharma "some time ago" and "because of the way it ended, they had not kept in contact"
   • (c) she and the boys had visited Mr Dharma on one occasion after he had been taken into immigration detention, but the visit was "not good" and she had neither visited again, nor had any further contact with Mr Dharma
   • (d) she did not wish to contribute any information to the review proceedings
   • (e) she did not wish to attribute any opinions to any of the three boys - all of whom were at school at the time of the hearing - other than that (i) the eldest boy was quite independent, (ii) the youngest boy did not really have any relationship with Mr Dharma - because he had either been "in gaol or not around since he was born"
   • (f) she did not know whether any of the boys had been in contact with Mr Dharma since their immigration detention centre visit
6. Mr Dharma complained that the delegate's decision had given little weight to the best interests of the three boys. He said the reasoning underlying the revocation refusal decision had unjustifiably downplayed the significance of his paternal contribution to the boys past welfare, and the likely potential significance of his future paternal role - especially in the case of the youngest of the boys.
7. In addressing the best interests of children, Direction no. 65 requires regard to a number of specific considerations. They include:
   • (a) the nature and duration of the relationship - including periods of absence and lack of meaningful contact
   • (b) the potential for the visa holder to have either a positive or negative future parental role or influence, taking the child's age into account
   • (c) the parental role fulfilled by people other than the visa holder
   • (d) the apprehended likely impact of the visa holder's removal from Australia, taking into account the extent to which parent and child could maintain other contact
   • (e) the views of each child.
8. Adumbrating the potentially relevant considerations in this way forcefully highlights the difficulty of reaching any fully informed satisfactory conclusion that the best interests of any of the three boys strongly favours revocation of the visa cancellation decision. At a general level, the proposition that Mr Dharma has played a strongly supportive past role in any of the boy's upbringing is thrown into considerable doubt by (i) his limited periods of employment since 2004, (ii) his extensive periods of imprisonment after February 2007, (iii) his long standing drug addiction and, (iv) his many convictions. More significantly, his prospects of playing a meaningful and significant future parental role is called into question by (i) the fact of his poor employment history, (ii) his significant risk of re-offending, (iii) his unresolved chronic drug addiction and (iv) the apparent breakdown of the relationship with his partner, and the apparently limited (or at least highly problematic) prospect of its revival.
9. Both the delegate, and the Minister's representative in the review proceedings, conceded the generality of the proposition that each of the boy's best interests likely favoured the revocation of the visa cancellation. But neither of those concessions attributed any significant weight to those interests. The question is what weight can and should properly be accorded to them.
10. I do not intend to convey any disregard of the potential significance of permanent physical paternal separation. But in a context where the other two primary considerations point in favour of visa cancellation, and one of them does so strongly, it is necessary to flesh out, as best one can, the details of each child's interest.
11. The starting point, in relation to the boys' collective position is that they live with their mother, and Mr Dharma conceded that she cared for them well. She has been in regular employment and, since about 2014 she obtained child care qualifications and has subsequently worked in that role. In the case of the eldest son, he will turn eighteen in October 2010. He is apparently doing exceptionally well at school, and being ably cared for by his mother, who (as I would infer from the reality of Mr Dharma's circumstances) must have effectively been his primary parental carer in recent years. In the absence of any more detailed information about this boy's circumstances, needs, attitudes and preferences it is difficult to accord any significant weight to the best interests that were conceded to apply to him.
12. Much the same conclusion applies to the second of Mr Dharma's sons. He will turn sixteen in October 2018, and although that means he is more than two years short of his majority, he is at an age of substantial maturity and intellectual and emotional development. Consistent with that view, he too is apparently performing exceptionally well at school. Consequently it is again difficult, in the absence of any more detailed information, to accord any significant weight to the best interests that were conceded to apply.
13. Mr Dharma's youngest son will turn seven in December 2018. He is therefore of comparatively tender years, and likely to benefit significantly in his development by close association with, and support from, a constructively involved paternal figure. Whether Mr Dharma has fulfilled, or is likely to fulfil that role, is unclear and doubtful (given his former partner's remarks). Mr Dharma was in gaol when the boy was born, returned to gaol before his first birthday, and spent a large part of the calendar year 2013 in goal as well. In the following year, Mr Dharma's domestic relationship appears to have become problematic (based on his October 2014 assault conviction). Its apparent permanent breakdown shortly afterwards resulted in Mr Dharma moving into accommodation away from his former partner and the three boys. In the subsequent three years, Mr Dharma worked only occasionally, continued with his chronic illicit drug use and continued to offend. He went back into custody in March 2017, just after his son's fifth birthday, and remained there until he was taken into immigration detention in October 2017. That history points to the conclusion that in the last six years Mr Dharma has spent approximately 32 months in either gaol or immigration detention, and something likely to be in the order of 30 months (all of 2015 and 2016, and part of 2014 and 2017) otherwise living separately.
14. Mr Dharma's significant period of physical separation, limited income, and the drug addiction that underlay them, does not of course preclude him from having played a significant role in his youngest son's upbringing and development. But it undermines confidence in the reality of his assertions to that effect, and hardly provides an evidentiary basis for accepting them. Still less does it provide a basis for confidence in the likelihood of his future conduct corresponding with his assertions.
15. Notwithstanding the justification for the kind of reservations expressed in the preceding paragraph, it is appropriate to recognise and accept that paternal contributions and attachments are not measured solely by close physical presence or financial contributions. Reasonably practicable accessibility, communicated affection, affirmation and guidance are other important aspects of the parental role and relationship. Consequently in a situation where Mr Dharma professes his concern for the welfare of his three sons, and particularly in relation to his youngest son, it is necessary to accept the generality of the proposition that the youngest son's best interests likely point in favour of the visa cancellation decision being revoked. But the reservations I have expressed, and the absence of any specific information about the details of Mr Dharma's relationship with his youngest son, and the appearance that he is well cared for by his mother, and living in an environment where his older male siblings appear to be thriving, lead to the conclusion that there is no evidentiary basis for according significant additional weight to that "best interest" generality.

1. Mr Dharma is the second of three children. His biological parents divorced in about 1980. Thereafter Mr Dharma apparently continued to live with his mother, who remarried in about 1982. After that Mr Dharma continued on as part of his mother's household for about the next ten years. But he claims he had an unhappy, indeed abusive, relationship with his stepfather, and that those difficulties led to him moving to Australia, in early January 1991, to live with his father and his stepmother. After coming to Australia Mr Dharma completed year 9 level high school, but did not go on after that to complete year 10 and obtain his School Certificate.
2. In the 31 October 2008 District Court sentencing remarks the judge recorded that after moving to Australia Mr Dharma had formed a positive relationship with his father, but left home at the age of sixteen. Mr Dharma's evidence in the present proceedings painted a different picture. He said his relationship with his father fractured after their return to Jakarta in early 1994. Mr Dharma said that his father initially portrayed the trip to Jakarta as only a brief holiday. The reality of it being a permanent return, and the appearance of Mr Dharma's father's abandonment of his Australian resident wife and four year old Australian born son distressed Mr Dharma. That distress then transformed into disillusionment when, according to Mr Dharma, his father married again after shortly after returning to Indonesia. It was those combined events that Mr Dharma claimed provoked his July 1994 return Australia.
3. On his return to Australia in mid 1994 Mr Dharma lived for a short time with his father's elder brother and his wife. But that was only for a few weeks, and he soon moved out and lived with friends. That association with an ill chosen friendship group had led to Mr Dharma's drug related offending. He did not re-offend until mid 1999, and even though his offences in the two years after that were associated with drug use, they were dealt with on the basis of being of a comparatively minor nature, perhaps not uncommonly associated with the ill-discipline and ill-judgment of late adolescence.
4. Throughout the period from about 1995 to about 2004, Mr Dharma was episodically employed - in various factory and short term labouring jobs. However the 2008 sentencing remarks record that, because of his illicit drug dependency and use, Mr Dharma had not then been employed since about 2004.
5. Mr Dharma's illicit drug use initially involved smoking cannabis - an activity in which he had first indulged at the age of fifteen and had developed into a daily practice by the time he was twenty one (ie., 1996 / 1997). About two years after that he had established a relationship with his partner, and their first son was born in 2000. But it was also around that time that his drug use escalated to smoking heroin, and he progressed to being a daily user. In 2003, in circumstances not explored in the evidence in the present proceedings, Mr Dharma became involved in a Drug Court buprenorphine program and, according to the 2008 sentencing remarks, ceased illicit drug use whilst he was a participant in that program. But he returned to drug use shortly after completing the Drug Court program, and a practice of regular heroin smoking, later supplemented by cocaine use, was a feature of his conduct for several years leading up to his robbery offence, and incarceration, in early 2007.
6. There is no clear picture of Mr Dharma's activities in the period after his release from prison in early January 2012 (and again in late 2013). It is known (from the details in Schedule 2) that his offending continued and, as he conceded, reflected his continuing drug use. He did not secure any regular employment, apart from a period between September 2014 and May 2015.
7. Apart from his chronic drug addiction Mr Dharma has no significant health concerns. His Villawood Detention Centre health records reveal that Mr Dharma has been prescribed anti-inflammatory medication, oral methadone (currently at a daily dosage that has been increased from 35 mg to 60 mg), anti-depressant medication, and an anti-oesophageal reflux medication. The anti-inflammatory medication was apparently prescribed for a July 2017 injury to his right wrist. Subsequent imaging studies indicated a full thickness cartilage tear with mild inflammation of the synovial membrane. An orthopaedic specialist review in March 2018 confirmed the cartilage tear diagnosis and suggested treatment with cortisone and management to avoid painful activities.

1. Mr Dharma conceives of himself as an Australian. From the perspective of his youthfulness on arrival and the duration of his residence, it is an understandable and reasonable self-perception. In addition, his paternity of three Australian born sons provides another dimension to his Australian ties. But other aspects of Mr Dharma's circumstances point less strongly to the depth and extent of his connection to the Australian community. His stepmother was killed in a car accident a few years after his 1994 return to Australia. He has not had any direct contact with his Australian born half-brother. He disclosed that his former partner has three siblings, two of whom lived in Sydney, and with all of whom she was on friendly terms. But his relationship with his former partner fractured years ago, the prospect of its meaningful revival is not a matter of optimistic probability - given his chronic drug use and recidivism - and there was no evidence that he had any real ongoing connection with other the members of her family. The aunt and uncle with whom he briefly stayed following his 1994 return are still in Australia and have two children. Since his immigration detention in October 2017 he has made Facebook contact with his aunty and cousins, but that communication has been recent and limited. Apart from those limited relationships, Mr Dharma has no significant history of employment (his last employment was in September 2015) and no significant history with or membership of community organisations.

1. Mr Dharma claims that he would suffer both language and cultural barriers if he were to be returned to Indonesia. He claims he would be without emotional, psychological and financial support - and in practical reality, unlikely to survive. Those claims are overstated. Mr Dharma grew up, and undertook a significant part of his schooling, in Jakarta. That experience will have left a lasting impression, and both his linguistic ability and cultural awareness can reasonably be expected to be able to be revived within a relatively short period. In addition Mr Dharma's 66 year old father, his mother, his sister, and his 37 year old brother still live in Indonesia. Each of his biological parents had five or six siblings. He initially claimed to have had no contact with any members of his Indonesian resident family since 1994, and claimed to be unaware of either their survival or current whereabouts. In relation to some of these people, the circumstances of his 1994 departure, and long intervening separation, his ability to establish (or re-establish) a supportive relationship is likely to have been compromised. In relation to others, there is a basis for confidence in his ability to benefit from some degree of familial assistance. It seems inherently likely that his Australian resident aunty and uncle will be able to put Mr Dharma in contact with at least some of the Indonesian resident family members. Moreover, in the course of his oral evidence in cross examination Mr Dharma disclosed that he had recently been in Facebook contact with his sister and had communicated with her in Bahasa. His sister is aged 46, has three or four children and lives in Jogjakarta. She offered to put Mr Dharma in contact with his mother.
2. I accept that Mr Dharma will likely have significant difficulties in adjusting to life in his birth city (or in Jogjakarta if he were to move there and live near or with his sister) given both his comparative youth when he left, and his long period of absence. Much will have changed. He will initially struggle with linguistic fluency. He will have few supportive family contacts, and no known friendship group. He will have no work history, and no significant qualifications (other than a limited number of trade related matters concerning asbestos removal, fork lift operation and working in confined spaces) likely to enhance his employment prospects. In addition, unless he is able either to recover from his drug addiction before leaving Australia, or enlist in a methadone treatment program in Jakarta, his opioid dependency will present real difficulty for him. All of these are understandably real concerns for him. But in relation to a significant number of them, they parallel difficulties he would likely face, in any event, were he to remain in Australia. (An observation that has two points of relevance:- (i) highlighting his risk of re-offending were he to remain in Australia, and (ii) reducing the extent to which the difficulties he will face after removal can properly be characterised as a consequence of removal.)

1. Two of the primary considerations to which Direction no. 65 mandates regard favour maintenance of the visa cancellation decision. The background of Mr Dharma's repeated offending, in the face of three occasions when he has been put on notice of his visa cancellation risk, justifies the conclusion that the concept of community expectation, as expressed in Direction no. 65, weighs heavily in favour of visa cancellation. That weight is supplemented by the reality of the risk that Mr Dharma's patently obvious past recidivism will continue. The contrary weight contributed by regard to the apparent best interests of each of Mr Dharma's sons is not determinative, because of the elder boys' ages, the problematic role that Mr Dharma has played, and is likely to play in his youngest son's future, and the potential for Mr Dharma maintain meaningful paternal communication from Jakarta. Nor does that contrary weight become determinative when regard is had to the combined relevance of Mr Dharma's other, but limited, Australian ties and the difficulties his Indonesian repatriation will likely occasion. The ultimately determinative considerations, in Mr Dharma's particular circumstances, are the reality of the risk of his re-offending and the inappropriateness of extending the concept of "low tolerance", against the background of mandatory regard to community expectation (as expressed in Direction no. 65), to an individual who has previously been warned about his visa cancellation risk on three occasions.
2. The decision under review is affirmed.

I certify that the preceding 59 (fifty -nine) paragraphs are a true copy of the reasons for the decision herein of Mr

.................................[SGD].......................................

Supply prohibited drug Schedule 2 - post 2007 offences and convictions

Destroy/damage property <$2000 (call up 30/9/13, 10/4/15)

Furnish false information/statement to licensee x 2

Never licensed person driving on road - prior offence

Destroy/damage property <$2000 (called up 3 Apr 17)

(s 9) :- a good behaviour bond granted under s 9 of the (NSW) Crimes (Sentencing Procedure) Act (1999)

(s 10a) :- a matter where a conviction was recorded - but no penalty imposed s10 (NSW) Crimes (Sentencing Procedure) Act (1999)

(s 12) :- a suspended sentence imposed under s 12 of the (NSW) Crimes (Sentencing Procedure) Act (1999)