Allan and Minister for Immigration and Border Protection (Migration)

[2016] AATA 1077

Allan and Minister for Immigration and Border Protection (Migration) [2016] AATA 1077 (23 December 2016)

Division	GENERAL DIVISION
File Number	2016/5352
Re	Lionel Allan
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal:Senior Member J F Toohey

Date:23 December 2016

Place:Sydney

The decision under review is set aside. Instead the Tribunal decides, in accordance with s 501CA(4) of the Migration Act 1958, to revoke the cancellation of Mr Allan’s visa.

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

Senior Member J F Toohey

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – mandatory cancellation of visa – request for revocation of cancellation – character test – substantial criminal record – drug and alcohol abuse – Ministerial Direction No. 65 applied – whether another reason why original decision should be revoked – primary and other considerations – prospects of rehabilitation – best interests of child – employment prospects –  decision under review set aside

LEGISLATION

Migration Act 1958, ss 499(2A), 501(3A), 501(6), 501(7), 501CA(3), 501CA(4)

CASES

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR; 60 ALJR 560

Rabino and Minister for Immigration and Border Protection [2016] AATA 999

SECONDARY MATERIALS

Direction No. 65 - Migration Act 1958 - Direction under section 499 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under

s 501CA
Convention relating to the Status of Refugees (1951)
Protocol relating to the Status of Refugees (1967)
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)
International Covenant on Civil and Political Rights (1966)

Second Optional Protocol to the International Covenant on Civil and Political Rights aiming at the abolition of the death penalty (1989)

REASONS FOR DECISION

Senior Member J F Toohey

23 December 2016

Background

1. Mr Lionel Allan is a 33-year old citizen of New Zealand.  He arrived in Australia in July 2005 as the holder of a Special Category (Temporary) Visa and has lived here since.

2. Mr Allan was convicted of a number of offences in New Zealand, and of further offences after arriving in Australia.  In June 2014, he was sentenced to four years imprisonment, two of which were to be served in custody, on two counts of common assault and one of reckless grievous bodily harm. 

3. On 22 April 2016, a delegate of the Minister for Immigration and Border Protection cancelled Mr Allan’s visa under s 501(3A) of the Migration Act 1958 (the Act).

4. In May 2016, at the expiry of the non-parole period, Mr Allan was transferred to Villawood Detention Centre where he remains.  He seeks review of the decision by a delegate of the Minister refusing to revoke the cancellation of his visa.

   The legislative framework

5. Section 501(3A) provides that the Minister must cancel a person’s visa if satisfied that he or she does not pass the character test set out in the Act.  A person does not pass the character test if he or she has a substantial criminal record and is serving a full-time sentence of imprisonment: s 501(6) and (7).

6. For the purposes of the character test, a person has a substantial criminal record if he or she has been sentenced to a term of imprisonment of 12 months or more: s 501(7).

7. As soon as practicable after deciding to cancel a person’s visa, the Minister must give the person written notice of the decision and invite him or her to make representations about the revocation of the decision: s 501CA(3).

8. Section 501CA(4) provides:

   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.

9. By reason of the sentence imposed by the court on 13 June 2014, Mr Allan has a substantial criminal record and cannot pass the character test.  The question is whether there is another reason why the cancellation of his visa should be revoked.

   Mr Allan’s background and history of offending in New Zealand

10. Mr Allan was born in 1983 and is the eldest of three children.  He describes his father as an abusive drunk who was violent, mainly to Mr Allan’s mother. He gave evidence that he grew up around a lot of alcohol and his father’s mates were always around drinking.  Despite this, Mr Allan says he did quite well at school. 

11. A certificate issued by the New Zealand police on 5 July 2016 shows Mr Allan was convicted twice in 2003 of breaching a local liquor ban and was fined.  On separate dates in February, April, May, July and September 2004, he committed offences of disorderly behaviour, burglary, shoplifting, possession of utensils and possession of an offensive weapon, “take/obtain/use doc for pecuniary adv[antage]”, breach of community work, and being unlawfully on property. 

12. Mr Allan came to Australia in 2005 to get away from the “party lifestyle” at home and find work.  He had one sister living in Australia already and his mother and younger sister planned to join him in time.  His younger sister has lived in Australia since 2012, his mother since 2014.

13. Mr Allan did not disclose his criminal record when he entered Australia; instead, he declared on his incoming passenger card that he had “no criminal convictions”.  He says he was “young and stupid”. 

14. It is not clear whether Mr Allan would have been allowed into Australia if he had disclosed his convictions.  I understand he would have been at least subject to questioning and it is possible he would not have been admitted at all.  The Minister submits that entering Australia in these circumstances should be regarded as Mr Allan’s “first chance”.  I am not sure I would see it in quite that way but, regardless, it is not to Mr Allan’s credit that he failed to disclose his prior offences when it had to be clear to him that he was required to.   

    Record of offending in Australia

15. Mr Allan started working as a labourer shortly after arriving in Australia.  However, he describes himself as being “on a path of destruction”; his friends were drug users and “party animals”, and he repeatedly lost his jobs.  In April 2007, he was convicted of four offences committed over two days that month.  His National Police Certificate shows the following history:

Court	Court Date	Offence	Court Result
Downing Centre District Court	13 June 2014	Common assault (2 counts); Reckless grievous bodily harm	Taken into account on form 1 Imprisonment: 4 years… non parole period with conditions: 2 years
Sutherland Local Court	12 August 2011	Break and enter house	Imprisonment: 12 months, suspended on enter bond s12: 12 months complete forum sentencing and intervention plan…
Sutherland Local Court	8 October 2009	Break and enter house (2 counts); Break and enter dwelling-house etc with intent (steal)	Periodic detention: 12 months
Southerland Local	11 October 2007	Take and drive conveyance w/o consent of owner; Destroy or damage property; Custody of knife in public place; Goods in personal custody suspected being stolen; Never licensed person drive on road (1st offence); Assault occasioning actual bodily harm	Imprisonment: 78 days
Sutherland Local Court	26 April 2007	Enter inclosed (sic) land not presc prmises w/o lawful excuse; Enter inclosed (sic) land not presc. premises w/o lawful excuse; Destroy or damage property; Custody of knife in public place	Fine: $100 Fine $100, costs- court: $67 Bond s9 – 12 months

1. The record shows that all of the offences between April 2007 and February 2011 were committed while Mr Allan was subject to good behaviour bonds.  In July 2007, he was convicted of assault occasioning actual bodily harm after assaulting his then girlfriend.  He was sentenced to 78 days imprisonment for that and other offences.  In October 2009, he was sentenced to 12 months periodic detention for break and enter offences.

2. Mr Allen met his wife, Laura, in 2009.  They started living together and he started to “smarten up”.  He found work but he continued to use drugs and would “fall back into bad ways” and, as his record shows, he committed further offences.  Around 2011, he had mostly stopped using ice, but he used the prescription medication Xanax.

3. In August 2011, Mr Allan came before the Local Court again on a charge of break and enter.  The magistrate’s sentencing remarks show that Mr Allan had been assessed as suitable for “forum sentencing”, that he and the victims fully participated in that process, and that he had agreed to pay the victims $5,000 by way of compensation.  On this basis, the magistrate imposed a 12 month suspended sentence on condition that he “be of good behaviour” and “complete the forum sentencing intervention plan”.  She told Mr Allan that he had been given a “substantial opportunity” to avoid gaol and he could not afford to make “any mistakes whatsoever” because he would not be given any further opportunities.

4. Despite that warning, in May 2013 Mr Allan committed the offences which led to his imprisonment and subsequent detention in Villawood. 

   Sentencing remarks

5. On 14 May 2013, Mr Allan was charged with two counts of common assault and one of reckless grievous bodily harm.  He was on bail until 13 June 2014 when he was sentenced. 

6. Sentencing Mr Allan, Judge Sweeney described how, on the night of 14 May 2013, he was out drinking, first at a suburban hotel, and then in Kings Cross where he became involved in a fight with three men outside a club, one of whom made a disparaging comment about being of New Zealand origin.  Judge Sweeney said:

   … Mr Allan punched [the first man] in the face using his right hand with a closed fist. This caused [the first man] to fall backwards and he landed on his back on the footpath and was unconscious.

   Mr Allan then took off the baseball cap he was wearing and hit [the second man] on the back with the cap and as [the second man] turned around Mr Allan punched him on his left cheek with a closed fist causing him to tumble to the ground. …

   Mr Allan then approached [the third man] who had bent down to assist [the first man] who was still lying on the ground unconscious. He punched [the third man] in the face in the right cheek and jaw region with the closed fist. This caused that man to fall backwards sitting down on the footpath against a garbage bin. As he stood up and straightened up Mr Allan approached him again in a fighting stance and punched that man in the face again using a closed fist which caused the man to fall off the footpath onto the road.

7. Judge Sweeney cited a medical report which showed the first man “sustained severe traumatic brain injury as a result of the assault which required urgent surgical intervention and intensive care admission.  He improved slowly over two to three weeks post-surgery and then was transferred to [a] Brain Injury Unit for ongoing rehabilitation.”  At the time of sentencing, he still suffered from “ongoing memory and concentration issues which affect his ability to remember people’s names and his ability to study, and he recalls nothing of the assault.”  She accepted that Mr Allan’s judgment was affected by alcohol but said the victim’s injuries meant the offence had to be assessed as “in the mid-range of seriousness for offences of this kind”.

8. Judge Sweeney accepted that Mr Allan was “immediately regretful” after the offence, that he “showed concern for the welfare” of the men he had assaulted, and was genuinely remorseful.  She noted that he made full admissions when interviewed and pleaded guilty early in the process.  She accepted that the offences “had clearly been a wake-up call” to which Mr Allan had responded.  She said that, despite a history of drinking, it was to his credit that he had reflected and knew he had to do something about his alcohol problem.  She accepted that, with regard to alcohol, “he has made a significant positive change” and had undergone alcohol counselling.  She noted that he had a “warm supportive family” including his wife, mother, mother-in-law and sisters.  She said he struck her as “frank” and said:

   He strikes me as, at core, a decent person with a lot of positive qualities.

9. Considering the previous assault in 2007, Judge Sweeney said she did not regard it as an aggravating factor because it was “only the one matter” and Mr Allan did not have a “persistent record of violence”.  She noted that his early plea of guilty warranted a 25 per cent discount of his sentence.  She concluded:

   I find special circumstances in Mr Allan having taken significant steps on the path to rehabilitate himself by attending to alcohol counselling and by changing the focus of his life to family and work rather than drinking, and I accept he will need some more support to deal with his abuse of alcohol given his past family environment and adult life with alcohol involved as a factor, and for those reasons I am going to reduce the non-parole period from the statutory ratio.

10. Judge Sweeney sentenced Mr Allan to a non-parole period of two years imprisonment as of 2 May 2014 with an additional term of two years imprisonment, making a total of four years, with two years to be served in custody; he would be eligible for parole on 1 May 2016.

    Ministerial Direction No. 65

11. The discretion to revoke the cancellation of a visa must be exercised in accordance with Ministerial Direction No. 65 (the Direction) which came into effect on 22 December 2014. The Direction was made by the Minister pursuant to s 499 of the Act and is binding on the Tribunal: s 499(2A).

12. By way of general guidance, the preamble to the Direction affirms the Government’s commitment to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens; the principles in the Direction are of “critical importance” in furthering that objective, and “reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable”: cl. 6.2(1).

13. The principles affirm Australia’s “sovereign right to determine whether non-citizens who are of character concern” are allowed to enter or remain in Australia.  They affirm that being able to come to, or remain in, Australia is a privilege, and the Australian community expects that the Government can and should cancel the visas of persons who commit serious crimes in Australia or elsewhere: cl 6.3(1) and (2).

14. Part C of the Direction concerns revocation requests.  It sets out primary and other considerations relevant to determining whether to exercise the discretion to revoke a mandatory visa cancellation: cl 5.  The following are primary considerations:

    (i)protection of the Australian community from criminal or other serious conduct;

    (ii)the best interests of minor children in Australia;

    (iii)expectations of the Australian community.

15. Other considerations include, but are not limited to:

    (i)international non-refoulement obligations;

    (ii)strength, nature and duration of ties;

    (iii)impact on Australian business interests;

    (iv)impact on victims;

    (v)extent of the impediments if removed.

16. Decision-makers must take into account the primary and other considerations relevant to the individual case.  Considerations may weigh in favour of, or against, revocation of a mandatory cancellation.   Primary considerations should generally be given greater weight than other considerations, and one or more primary considerations may outweigh other primary considerations: cl 8.

    Protection of the Australian community

17. When considering protection of the Australian community, decision-makers must have regard to the objectives of the Act and the principles in the preamble: cl 13.1(1).  In accordance with cl 13.1(2), decision-makers should also give consideration to:

    (a)the nature and seriousness of the noncitizen’s conduct to date; and

    (b)the risk to the Australian community should he or she commit further offences or engage in other serious conduct.

18. In considering the nature and seriousness of offending to date, decision-makers must have regard to factors including: that violent crimes are viewed very seriously; the sentence or sentences imposed by the courts; the frequency of offending and whether there is any trend of increasing seriousness; the cumulative effect of repeated offending; and whether the person has provided any false or misleading information to the Department of Immigration and Border Protection including by not disclosing prior criminal offending:  cl 13.1.1.

19. The nature of harm to individuals or the Australian community should the person reoffend, and the likelihood of reoffending are relevant to considering whether the risk of repeated offending is unacceptable: cl 13.1.2.

    The nature and seriousness of Mr Allan’s conduct to date

20. Mr Allan acknowledges the seriousness of his offending, in particular the two assaults.  The sentences of imprisonment, in particular for the assault in May 2013, reflect the seriousness of those offences. 

21. I accept Mr Allan’s evidence about the circumstances of some of the offences committed in Australia which suggests they were at the lower end of seriousness.  For example, he was convicted in April 2007 and October 2007 of being in custody of a knife in a public place.  Mr Allan gave evidence that he had a small Swiss Army knife which he always carried on him, attached to his key ring.  I accept the offence probably sounds more sinister than it was in fact.  I also accept his explanation for some other offences such as taking and driving a vehicle without the consent of the owner, and entering enclosed land without lawful excuse, which indicate they were also at the lower end of seriousness, as reflected in the good behaviour bonds imposed. 

22. That said, there is no escaping that Mr Allan committed a number of serious offences in addition to the assaults in 2007 and 2013, that his offences were increasingly serious, and that many were committed while he was on good behaviour bonds.  They culminated in the assault in May 2013 which, it is reasonable to conclude, could well have caused the death of his main victim.

23. The Minister submits that Mr Allan has a substantial and serious criminal history in Australia and that his criminal record reveals a consistent pattern of behaviour dating from a young age and before he arrived in Australia.  The Minister submits that Mr Allan has demonstrated a propensity for violence, particularly against members of the public, and that the cumulative effect of his repeated offending should weigh heavily against him in these proceedings.

24. There can be no argument with those submissions.  However, for the reasons set out below, I am satisfied that the risk to the Australian community of future offending by Mr Allan has very substantially reduced since May 2013.  I am satisfied that it is now low, and is not unacceptable. 

    The risk to the Australian community should Mr Allan commit further offences or engage in other serious conduct

25. I accept that Mr Allan genuinely understands, and is remorseful for, the harm caused by his last offence in particular. 

26. Mr Allan admits to a history of alcohol and drug abuse including the drug “ice”, and most of his offences were committed under the influence of one or both.  That is no excuse, especially when he continued to offend without taking any real steps to deal with his alcohol and drug problem.  I accept his evidence that he thought he could deal with his addiction on his own, and that he made some efforts to do so, but he continued to use, and his offending continued over many years.  

27. Mr Allan gave evidence that, around 2010, after forming a relationship with his now wife, he “started to smarten up”.  He found employment five days a week through a recruitment company.  A letter dated 18 June 2013 from the company’s operations coordinator confirms that Mr Allan had been employed as a construction labourer since September 2011.  It states:

    Mr Allan has always been reliable and displayed an easy going nature who conducted all tasks requested by Forepersons & Supervisors.  We consider Mr Allan to be a hardworking and honest individual who could be left to work autonomously and in Clients homes.

    In the time I have known Mr Allan he has come across as a man with strong family values who is striving to earn a good living to provide to himself and his partner Laura.

    During the time of his employment he has been retained on long term sites, with feedback from our clients always being positive and is requested by clients for new projects.

    [We] will continue to offer available assignments to Mr Allan.

1. Mr Allan gave evidence that his wife, Laura, told him after the May 2013 assault that she would leave him if he reoffended, and he was determined to change.  He found work to show her that he was “a decent person” and saved money to support her while he was in gaol, as he anticipated was likely.  They married in November 2013.  Their son was born in October 2016.  Mr Allan gave evidence that is determined to be a better father than his own father was to him, and I accept that he is genuinely motivated.

2. Laura Allan gave evidence at the Tribunal hearing.  She is employed as a childcare educator.  I found her to be an impressive witness.  She strongly supports Mr Allan, but is plainly determined not to accept any further offending.  She says that, over the course of their relationship, he has moved away from his old friends and started to change, but the change was really noticeable after May 2013 when he worked hard to save money for her and they moved to a bigger house for a fresh start.  She gave evidence that, since being on day release since 2015, and at home on weekend release in 2016, he could have easily obtained drugs but he has not. 

3. Shortly after the May 2013 assaults, Mr Allan presented himself voluntarily for drug and alcohol counselling.  It might be said that he was hoping to present the best face to the sentencing court, but I am satisfied that he was genuinely remorseful for the assault and motivated to deal with his problems.  His mother, mother-in-law and wife all gave evidence about his genuine shock at learning the extent of the injuries he had inflicted, his remorse, and his concern for the welfare of his victim.  I accept their evidence about this.

4. Lyn Cooke, a drug and alcohol counsellor at St George and Sutherland Hospital, provided a letter to the District Court at the time of Mr Allan’s sentencing in June 2014.  Ms Cooke reported that she had been seeing him since July 2013 when he presented for an assessment, counselling and support.  She stated:

   Since Mr Allan commenced seeing me he has been gainfully employed, he regularly works a 6 day week of long daily hours. He attends his counselling sessions after work. There have been occasions when, due to work commitments, he was unable to attend, on these occasions [he] has always phoned and re scheduled his appointment.

   Mr Allan was recently married and is planning to start a family in the near future. He reports that he is very settled in his life. His intake of alcohol has declined considerably; his social life is usually when he and his wife go out to dinner or to the local Hotel for a meal and a few drinks. Mr Allan was recently promoted in his job and is saving to purchase a home of his own. He current (sic) has his mother-in-law and his mother residing with him, as he is seen as a responsible and reliable family member.

   I have noticed many changes in Mr Allan’s behaviour. He has reduced his alcohol intake considerably and has ceased using Amphetamines. He settled in his life overall and reports that his drinking is at a manageable level. I would be happy to continue seeing Mr Allan if  the court should wish me to do so.

5. While in gaol, Mr Allan undertook several drug and alcohol rehabilitation programs.  In November 2014, he completed a 12-session Getting SMART program.  In April 2015, he completed a 20-session EQUIPS Foundation Program, and in July 2015 he completed a 20-session EQUIPS Aggression Program.  While in Villawood, he has attended Narcotics Anonymous and Alcoholics Anonymous meetings when they have been held.  I accept that there are few formal opportunities to undertake rehabilitation programs in Villawood Detention Centre and that meetings are only held occasionally.

6. In 2013, Mr Allan completed two units of a Certificate 1 in Access to Work and Training course at TAFE, and in 2015, two units in Warehousing Employment Preparation.

7. Despite his history of offending and the seriousness of the 2013 assaults, on 30 July 2014, after initial processing, Mr Allan was apparently assessed as a minimum security risk because he was transferred to a minimum security farm gaol in Victoria where he spent approximately one year.  He was assigned to a farm gang working mostly at a timber works.  In about August 2015, he was given a “C3 classification” and transferred to Parklea Correctional Centre in Sydney where he was eligible for work release and, in 2016, to spend weekends at home. 

8. The manager of Parklea Correctional Centre, provided a reference dated 10 May 2016 in which he states: 

   I have known Lionel Allen for approximately five months, in my capacity as area manager of the area in which he has been incarcerated throughout that time.

   Lionel was a very compliant and industrious inmate, who had nothing but positive interactions with staff and other inmates. He progressed quickly to minimum security classification during his two year incarceration, and attained the lowest security classification (C3) in June 2015. Lionel then participated in the External Leave Program (ELP), through which he gained employment with Empower Construction.  Lionel was always very well reported by his employer, as well as pay unit staff and supervisors.

   I found Lionel to be a very polite, well-mannered and articulate man, who easily established good rapport with those around him. I have no hesitation in recommending that the decision to rescind Lionel’s Visa be reconsidered, as I believe his behaviour in gaol and in the community has reflected a major change from the person who was convicted in 2014.  I am confident that Lionel will make the transition to normal lawful community life, and can make a very positive contribution to our society in the future.

9. In September 2015 Mr Allan started full time work with Empower Construction under a work-release program.  Ryan Steyn, the CEO and founder of the company, and Julia Sampo, the general manager, provided written references for Mr Allan and gave oral evidence. 

10. Mr Steyn gave evidence that the company takes on two to three new employees each week and is ranked in the 100 fastest growing companies in Australia.  They take prisoners on work release as part of their commitment to community engagement.  Prospective employees on work release go through the same recruitment process as any other prospective employee, and Mr Allan was selected for his performance at interview and his experience in construction.  Mr Steyn and Ms Sampo spoke highly of Mr Allan.  Mr Steyn said:

    [He] has shown exceptional work, customer service, teamwork, dedication, willingness to learn and improve, as well as an all-round excellent work ethic and attitude towards rehabilitating back into the workforce.

11. Ms Sampo described Mr Allan as a “motivated and dedicated employee” who “has shown true potential”.  Before he was due for release, the company offered him an ongoing contract to commence upon his release for a “2IC position with increased responsibilities”.  Mr Steyn confirmed that the company will employ Mr Allan full-time immediately upon his release, and he expects Mr Allan will progress quickly from 2IC to a team leader. He described Mr Allan as a “great leader”, especially to the younger workers.

12. Written and oral evidence was also given by Mr Allan’s mother-in-law who has lived with him and his wife for the past seven years, his mother and his two younger sisters.  Evidence was also given by other members of the family and friends.  Some witnesses, including Mr Allan’s sisters, were not familiar with all the details of his offending and, to that extent, the opinions carry less weight.  However, the strength of the family’s support for him was impressive, in particular the support of his mother and mother-in-law who both believe he has changed and will not reoffend.

13. New South Wales Police records produced under summons record that Mr Allan was present when police spoke on two occasions in August 2013 and October 2013 to persons in the street who, it appeared, were drug users.  The Minister submits that these records undermine Mr Allan’s claim to have ceased association with persons involved in drugs.  I accept Mr Allan’s evidence that, on both occasions, he had a passing involvement only with those persons, and I accept it is not always possible to avoid people altogether.  I do not think these occasions undermine Mr Allan’s credibility or his genuine efforts at rehabilitation.

    The best interests of minor children in Australia

14. In considering the best interests of a child or children, factors that must be considered include: the nature and duration of the relationship with the child; the extent to which the person is likely to play a positive parental role in the future; whether the person’s prior conduct, and any likely future conduct, would have a negative impact on the child; and the likely effect that any separation would have on the child: cl 13.2(4).

15. Mr Allan’s son was born in October 2016.  Mr Allan’s wife travels by public transport to the detention centre three times each week to visit him and so that he can see his son.  It is evident, from hearing Mr Allan, his wife and other members of his family, that he is devoted to his son.  I accept that he is determined to be the father to his son that his own father never was to him.

16. Ms Allan gave evidence that, if it came to it, she would go to New Zealand with their son in order to be with Mr Allan.  The Minister acknowledges that this would mean removing the child from other members of the family including both grandmothers.

17. The Minister acknowledges that it is in the best interests of Mr Allan’s infant son for him to remain in Australia, and that this consideration weighs in favour of exercising the discretion to revoke the cancellation, and I agree. 

18. The Minister submits, however, that this consideration is outweighed by others, in particular the protection of the Australian community, and the expectations of the Australian community.  

    Expectations of the Australian community

19. The Direction states that the Australian community expects non-citizens to obey Australian laws; where a non-citizen has breached, or there is an unacceptable risk that they will breach, this trust, or where he or she has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation.  Non-revocation may be appropriate “simply because the nature of the character concerns or offences are such that the community would expect that the person should not hold a visa”.  Decision-makers “should have due regard to the Government’s views in this regard: cl. 13.3.  

20. The principles in the Direction “reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable”: cls 6.2.

21. What the community would expect in a particular case, and whether the risk of future harm by a particular individual is unacceptable, is not something for which there can be any formula; it will always be a matter of judgment, informed by the subject-matter, scope and purpose of the legislation: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR; 60 ALJR 560.

22. In Rabino and Minister for Immigration and Border Protection [2016] AATA 999, Deputy President Forgie observed at [65]: “at the heart of the Direction is the protection of the Australian community and its institutions”, and “within these parameters, the Principles are directed to whether the Australian community is prepared to give the person another opportunity to remain in Australia”: at [68].

23. Whether the Australian community would be prepared to give a particular person another chance will depend on the circumstances of the case considered in light of the overriding purpose of the legislation.  Considering all of the information before me about Mr Allan’s offending, his genuine efforts at rehabilitation, the low risk of his reoffending, and the contribution that he will be able to make through his employment, I am satisfied that the Australian community would not say that he presents an unacceptable risk of future harm.  Rather, I am satisfied that the Australian values and standards, to the extent that they can be discerned, would favour giving him a second chance.

    Other considerations

    International non-refoulement obligations

24. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights  and its Second Optional Protocol. These obligations require that Australian not forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm: cl 14.1.

25. There is nothing to suggest that, if returned to New Zealand, Mr Allan would be at risk of a type of harm that would invoke Australia’s non-refoulement obligations.  In other words, nothing weighs in favour of revocation by reason of any non-refoulement obligation.

    Strength, nature and duration of ties

26. When considering the strength, nature and duration of ties that a person has to Australia, regard must be had to how long the person has lived in Australia, noting that less weight should be given where he or she began offending soon after arriving here, and more weight should be given to time he or she has spent contributing positively to the Australian community: cl 14.2. 

27. Regard must also be had to the strength, duration and nature of any family or social links with Australian citizens or permanent residents including the effect of non-revocation on a person’s immediate family in Australia: cl 14.2.

28. Mr Allan has lived in Australia for 11 years, since he was 22.  The fact that he committed his first offences less than two years after arriving in Australia, and continued to offend up until May 2013 weighs against revoking the cancellation of his visa.  The Minister accepts, however, that he has spent some time positively contributing to the Australian community in that he has been employed.

29. Mr Allan’s wife and infant son live here, as do his mother and two sisters, and his mother-in-law.  The Minister accepts that the support shown him in these proceedings indicates that he has a strong connection to his family in Australia and that he and his Australian citizen wife will suffer significant emotional and/or financial hardship if they are to be separated, especially given the recent birth of their child.

30. The Minister accepts that, despite his offending, this consideration favours the decision to revoke the cancellation of Mr Allan’s visa.

    Impact on Australian business interests

31. There is nothing to suggest that Mr Allan’s removal from Australia would have any impact on Australian business interests.

    Impact on victims

32. Clause 14.4 of the Direction requires that consideration be given, if relevant, to the impact of non-revocation on members of the Australian community including victims of a person’s criminal behaviour and on victims’ family members, where that information is available.

33. The medical report referred to by Judge Sweeney describes the effects of Mr Allan’s assault on one of his victims.  There is no current evidence as to the effects, but clearly they were very serious and it appears likely that the main victim has been left with permanent effects.

34. The Minister submits, and I agree, that Mr Allan would not have an ongoing relationship with those members of the Australian public who have been victims of his assaults and, for this reason, that this consideration is not relevant in this case.

    Extent of the impediments if removed

35. The Direction requires that consideration be given to any impediments that the person may face, if removed from Australia to their home country, in establishing themselves in maintaining basic living standards, taking into account: the person’s age and health; whether there is substantial language or cultural barriers; and any social, medical and/or economic support available to them in that country: cl 14.5.

36. It is reasonable to conclude that Mr Allan would face some difficulty in adjusting to life in New Zealand after an absence of 11 years.  However, he lived in New Zealand until he was 22 and there are no substantial language or cultural barriers to his reintegration.  Other than for family, the social, medical and economic supports available to him in New Zealand would be much the same as in Australia.

37. I find that nothing in this consideration weighs against revocation.

    Conclusion

38. I am satisfied that, although he does not pass the character test, there is reason why the decision to cancel Mr Allan’s visa should be revoked. 

39. Taking into account the primary and other considerations which I am bound to have regard to, I am satisfied that, considered as a whole, they weigh in favour of revoking the cancellation.  

40. Were it not for the fact that Mr Allan was on bail for 13 months between the last offence and his imprisonment, and on work release for five days each week from September 2015 and allowed home visits on weekends, his assurances that he will not reoffend would be entirely untested.  Given his history and the increasing seriousness of his offending, the risk to the Australian community would be, in my view, unacceptable, and the Australian community would expect the cancellation of his visa to stand.   

41. However, I am satisfied that Mr Allan has genuinely seen the error of his ways and is determined not to reoffend.  He has taken substantial steps in that direction and has the strong support of his family, and full-time employment with a supportive employer to go to on his release.  He has the incentive of his young son to encourage him and the determination of his wife to keep him to his word. 

42. I am satisfied that, despite his history of offending, the Australian community would be prepared to give Mr Allan this final chance.  However, he should be under no illusion as to what is likely to happen if he reoffends.

43. For these reasons, I set aside the decision to cancel Mr Allan’s visa and in substitution decide that the cancellation should be revoked.

I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member J F Toohey

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

Associate

Dated: 23 December 2016

Date(s) of hearing:	15 & 16 December 2016
Advocate for the Applicant:	Indo Ausie Factor Pty Ltd - Migration Agents
Solicitors for the Respondent:	Clayton Utz