Angell and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Angell and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 862 (30 March 2021)
Division:GENERAL DIVISION
File Number(s): 2021/0154
Re: BENJAMIN JOSEPH ANGELL
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:30 March 2021
Place:Sydney

The decision under review is affirmed.
...............................[sgd]...................................
Senior Member A Poljak
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass character test – whether there is another reason to revoke the original visa cancellation decision – consideration of Direction No. 79 – protection of the Australian community – best interests of minor children – expectations of the Australian community – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501, 501CA
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member A Poljak
30 March 2021

Mr Benjamin Joseph Angell, the applicant, is a citizen of New Zealand. He first arrived in Australia in May 1993. He has been living permanently in Australia since 17 January 2005; when he arrived at 19 years of age.
On 25 January 2017, the applicant’s Class TY Subclass 444 Special Category (temporary) visa (visa) was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) (mandatory cancellation decision) because it was found that the applicant did not pass the character test. At the time of that decision, he was serving a 15-month full-time custodial sentence for his convictions on 30 May 2016 for assault occasioning actual bodily harm and stalk/intimidate intend fear physical harm.
The applicant sought revocation of the mandatory cancellation decision on 10 February 2017. In 2018, the applicant was subsequently convicted of further offences and sentenced to an additional 10 years imprisonment. On 24 December 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) decided, under subsection 501CA(4) of the Act, not to revoke the mandatory cancellation decision. This is the decision under review in these proceedings.
RELEVANT LAW
Subsection 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of paragraphs 501(6)(a) and (7)(c),
Subsection 501(6) defines the character test. Relevantly, a person does not pass the character test if the person has a “substantial criminal record” as defined by subsection 501(7). Paragraph 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Subsection 501CA(4) of the Act provides that the Minister may revoke the original decision if the Minister is satisfied that the person passes the character test as defined by section 501; or that there is another reason why the original decision should be revoked. This is a discretionary power.
A decision under subsection 501CA(4) of the Act involves an assessment and evaluation of the factors for and against revoking the mandatory cancellation decision. A determination under subsection 501CA(4) must be carried out in accordance with any written directions given by the Minister under the Act: subsection 499(2A).
The Minister has made such written directions under subsection 499(1) of the Act, in the form of “Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction No. 79). Therefore, in making a determination under subsection 501CA(4) of the Act, the decision-maker must comply with Direction No. 79.
THE CHARACTER TEST
It is not in dispute that the applicant fails the character test under paragraph 501(6)(a) of the Act. The applicant has a substantial criminal record as defined by paragraph 501(7)(c) of the Act.
DIRECTION NO. 79
Direction No. 79 provides that the decision is to be approached within the framework of the Principles in paragraph 6.3 (Principles). These Principles are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the Principles, the decision-maker must have regard to Part C of Direction No. 79, which identifies the relevant considerations for determining whether to exercise the discretion to revoke the mandatory cancellation decision. Paragraph 13(2) provides that the primary considerations are:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia; and
(c)expectations of the Australian community.
The decision-maker must also have regard to other considerations insofar as they are relevant. Paragraph 14(1) states that these include (but are not limited to):
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed.
PRIMARY CONSIDERATION (A) – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
In determining this primary consideration, I note that I must have regard to the matters set out in paragraph 13.1 of Direction No. 79, namely:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community…
(2) Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) The nature and seriousness of the applicant's conduct to date
Paragraph 13.1.1(1) of Direction No. 79 provides that in considering the nature and seriousness of the applicant’s criminal offending or other conduct to date, a decision-maker must have regard to several factors, relevantly in this matter:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)…;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled) … are serious;
(d)… the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness; and
(f)The cumulative effect of repeated offending.
The applicant has an extensive criminal record. While in New Zealand, the applicant was convicted of three counts of unlawfully taking a motor vehicle; five counts of breaching ‘community work’; one count of resisting police; and failure to answer bail. These offences occurred in 2003 and 2004. In Australia, the applicant has been convicted of twenty-nine (29) offences between 2005 and 2018. Including two convictions for sexual intercourse without consent; eight convictions of assault (four common assaults, two assaults occasioning actual bodily harm and two assaults involving actual bodily harm in company); two convictions for robbery (including one for aggravated robbery); two convictions for stalk/intimidate intend fear and physical harm; two convictions for resisting police and one for proving a false name to police; one contravention of an apprehended violence order; four convictions for driving having never held a licence; two convictions for using a vehicle that was unregistered and uninsured; three convictions for remaining on enclosed land without a lawful excuse; one conviction for breaching bail; and three convictions for using offensive language/spitting. The applicant has been sentenced to a total of more than 19 years of imprisonment for his convictions. He has served 7 years and 9 months and is eligible for parole in 2024.
The nature of the applicant’s offending should be viewed extremely seriously as they include convictions of a violent and sexual nature against women; violence against a vulnerable victim; and violence against a government official or representative in the performance of their duties. Relevant aspects of some of his most serious convictions are detailed below.
On 20 April 2018, the applicant was convicted of common assault, and two counts of sexual intercourse without consent (domestic violence related (dv)), and assault occasioning actual bodily harm (dv). He was sentenced to 10 years’ imprisonment, with a 7-year non-parole period. In sentencing, Judge Colefax SC of the District Court of New South Wales, outlined his findings and the facts of the offences, as contained in an agreed statement of facts, as follows:
[11] … it would also seem that in December 2015 Mr Angel began an intimate personal relationship with another woman, the victim.
[12] The intimate relationship between Mr Angel and the victim continued until the beginning of February 2016.
…
[16] [On the afternoon of 26 February 2016] Mr Angel came out of that home unit complex and walked up to the victim. A verbal argument began. This argument was of concern to neighbours who heard screaming. Someone called the police.
[17] During the course of this argument, Mr Angel screamed at the victim and pushed her, after which he screamed at her again and walked off. The victim walked away from the scene.
...
[23] [The following night, the applicant and victim caught a taxi to the applicant’s house] … he said, “Let’s go inside”. The victim said, “No. We can talk here, and I can walk home”. Mr Angel ignored the victim and “led” her into his house. (The agreed statement of facts does not shed any more light on what was meant by the expression “led”).
…
[24] Once they got into the house, Mr Angel stopped in front of the bathroom, after which he took the victim to his bedroom which was directly opposite the bathroom. They entered the bedroom and Mr Angel told the victim to lock the door. As I would understand the agreed facts, she did this by jamming a power board wedged behind a set of drawers. Whilst this was occurring, Mr Angel put his two sleeping infant children on a mattress on the ground.
…
[26] Mr Angel grabbed the victim by the arm and pushed her onto her back on the bed. He pulled down and removed her tights. The victim told Mr Angel that she did not want to do this. Mr Angel however was not to be deterred. He pulled her shirt up and took of [sic] his shorts and underwear as the victim continued to say, “No”.
[27] Mr Angel then climbed on top of the victim. She tried to hold her legs together but Mr Angel forced them open and pinned her down with his weight. He put his right hand over her mouth and told her to do what she was told and listen to him. Mr Angel then removed his hand from the victim’s mouth and used it to guide his penis into her vagina. The victim said, “Please stop” and began to cry as Mr Angel had penile-vaginal intercourse with her until he ejaculated inside her.
…
[30] Having committed this offence, Mr Angel said, “I’m going again” and the victim said, “Please don’t”. After removing his penis from the victim’s vagina, Mr Angel immediately placed it back in and resumed having penile-vaginal intercourse with her. She cried whilst Mr Angel had this further sexual intercourse with her. He again ejaculated inside her.
…
[32] Mr Angel then removed his penis from the victim’s vagina, grabbed a towel and wiped his penis with it. The victim rolled herself into a ball on the bed. Mr Angel said, “It’s not like you didn’t enjoy it”. He threw the towel at the victim and she used it to clean herself. She then lay on the bed next to Mr Angel. She waited until he was asleep at which time she went into the lounge room and slept on the lounge. Sometime later Mr Angel was woken by his children. He went to the lounge room and told the victim to return to his bedroom which she did and then she slept next to him.
…
[34] Shortly before midnight on the following evening, 28 February 2016, the victim was walking home from a friend’s house. She passed Mr Angel’s house on the other side of the street. Mr Angel had apparently sent a text message to her indicating he expected her to come back and see him. He saw the victim walking on the other side of the street from his house and yelled, “What took you so fucking long?” Mr Angel then crossed the road, grabbed her and walked her to his front veranda. The victim began to scream. Mr Angel hit her with a closed fist to the left eye.
[35] The victim tried to run away but Mr Angel grabbed her and started hitting her again. He pulled her into his backyard. As he was doing this, she managed to grab her mobile phone and call 000.
[36] Mr Angel took the victim into his house. He saw the phone in her hand and asked why the light was on. She stopped the 000 call and Mr Angel told her to give him the phone. At around this time, Mr Angel’s daughter began to cry and he became distracted.
[37] Shortly afterwards, the police arrived at Mr Angel’s premises and knocked on the door - with no response. At this time, Mr Angel and the other occupants of the house (two of his sisters and his two children – and the victim) were standing in the hallway listening to the police knocking on the door. When the knocking stopped, the victim heard footsteps walking away from the door. She immediately ran to the door, opened it and ran outside. She ran to the police car and banged on the window yelling, “Let me in”.
…
[43] In terms of its objective seriousness for an offence of its kind, it is towards but not at the middle of the range.
…
[45] There were a number of telephone calls between the offender and the victim whilst the offender was in custody in mid-March 2016. The substance of these calls was to the effect that the offender sought to excuse what he did – which he said he couldn’t remember – because he was “too fried”, by which I take it he was asserting he had taken a significant quantity of Methylamphetamine at about the time of the sexual assaults. (I pause to observe that in the absence of any sworn evidence from the offender, I am not satisfied on the balance of probabilities that Mr Angel could not – or now cannot – remember the circumstances of the sexual intercourse offences and there is no suggestion he could not remember the assault occasioning actual bodily harm.)
[46] Each of the principal offences is aggravated by the fact that they were committed whilst Mr Angel was on bail for charges of assault occasioning actual bodily harm, stalk or intimidate with intent to cause fear of physical harm, and failure to appear in accordance with a bail acknowledgement. In due course, Mr Angel was convicted of those matters and imprisoned …
On 30 May 2016, the applicant was convicted in the Local Court of NSW at Mount Druitt for assault occasioning actual bodily harm, failure to appear in accordance with bail, and stalk/intimidate intend fear physical harm for which the applicant was sentenced to 15 months’ imprisonment. Magistrate Spence outlined key aspects of the evidence and found the offences proven. He accepted the victim’s evidence and noted that the applicant declined to give evidence or call any witnesses in his defence. The evidence as summarised by Magistrate Spence outlined the following:
(a)The applicant punched his sister in the face with a closed fist causing her to fall to the ground. He accused her of taking drugs;
(b)The applicant punched the victim in the face, with a closed fist and full force, causing her nose to pour blood. He accused her of giving his sister drugs;
(c)The applicant then retrieved a metal baseball bat and hit the victim several times to her legs and shoulder, initially with some force but then as “taps”. The victim sustained several bruises;
(d)The applicant threatened the victim that he would kill her and then retrieved a steak knife from the kitchen. He continued to threaten the victim and his sister with the knife and then held the knife to the victim’s throat.
On 18 February 2009, the applicant was convicted in the District Court of NSW for aggravated robbery. He received a custodial sentence of 3 years. Judge Hughes, the sentencing Judge, made the following findings about the offence:
(a)The applicant approached the victim and said words to the effect of ‘do you mind handing your phone over’. The victim refused. The applicant threatened the victim. Simultaneous with this threat, the applicant took hold of the victim’s right arm and bent it up behind his back and locked it into place before grabbing the victim’s mobile phone and fleeing into the Shopping Centre;
(b)The police later arrested the applicant who failed to comply with police directions and began swearing and conducting himself in an anti-social manner.

In around 2009-2010, the applicant was also convicted for assaulting a bus driver and taking his money.
The NSW Police Case Note Report records that on 13 May 2005, the applicant assaulted a wheelchair bound victim with cerebral palsy. The applicant punched the victim to the left eye area causing bleeding.
The seriousness of the applicant’s conduct is reinforced by the sentences imposed on him. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved. In the present case, as a result of the applicant’s extensive convictions he has been sentenced to a total of 19 years imprisonment.
(b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
In assessing whether the applicant represents an unacceptable risk of harm to the Australian community, regard must be had to paragraph 13.1.2(1) of Direction No. 79. That is, cumulatively:
(g)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(h)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The applicant has been found guilty of several violent offences and there would be serious consequences should such offending be repeated, particularly since the applicant’s criminal conduct has included violence against a vulnerable victim and convictions of a violent and sexual nature against women. The nature of the harm caused if the applicant were to re-offend is extremely serious and is likely to involve significant physical and psychological harm to members of the Australian community such that any risk of re-offending is unacceptable.
In a Pre-Sentence Report, dated 18 February 2009, it was noted that the applicant was assessed by a psychologist in 2006 as having an IQ of 72 - in the borderline range, slightly above intellectually disabled. In summary, the applicant was regarded to be of a medium/high level of re-offending as he had an impaired ability to adequately comprehend and address his offending behaviour.
In a more recent Pre-Sentence Report, dated 24 May 2016, the applicant was assessed as a high risk of re-offending. The report recorded the following assessment of the applicant:
“[The applicant] appears to have major personal and emotional issues in his life which are yet to be addressed. He appears to have significant issues surrounding anger, violence and entrenched drug use, which will require substantial intervention and dedicated commitment on his part to overcome. It is of concern that [the applicant] does not appear to be ready to recognise nor confront these issues and has not sought appropriate treatment of his own accord, particularly given that anger and drug use led to the breakdown of his family unit.”
On sentencing the applicant for convictions of sexual intercourse without consent and assault occasioning actual bodily harm in April 2018, Judge Colefax SC remarked:
[59] … I regard the offender’s overall prospects for rehabilitation as guarded, at best. They would not be enhanced by a longer period on parole. He is not a young offender. This is not his first time in custody. I decline to make a finding of special circumstances to vary that ratio of the head sentences to the non-parole period.
At hearing, the applicant failed to acknowledge the seriousness and breadth of his criminal conduct. He conceded that his criminal record was “bad” but did not appear to understand the impact his conduct has had on the victims. When questioned about some of his past convictions, the applicant either stated that he was “stupid”, “young and dumb” or that he could not recall the details of his offending conduct because he was high on ice at the time the offences occurred. The applicant appeared to have some impaired ability in understanding his criminal conduct and the reasons behind his offending. He explained that he had a very difficult childhood and did not “know any different”.
I am not satisfied that the applicant is remorseful for his actions. He has demonstrated little insight into his conduct, particularly regarding the most recent offences of sexual intercourse without consent. The applicant stated that the victim often “hung around” him and his sister and that if she was unhappy with his conduct at any time, she would have stayed away from him or gone home. The applicant also stated that the victim visited him in prison a couple of times after his conviction. He implied that the victim fabricated the offence and that her conduct towards him, after the offence occurred, supported this assertion.
The applicant has a long history of illegal drug use. Since the age of 14, the applicant has regularly used cannabis and methamphetamine (ice). He has reported periods of abstinence, followed by periods of relapse. At hearing, the applicant advised that he was drug free. When questioned as to how he had managed to cease his drug use, he advised that he “did it himself”. He did not receive any professional assistance and did not undertake any programs to help deal with his drug use and rehabilitation. I am very guarded about the applicant’s claim that he is now drug free. Although I commend any effort on his behalf to deal with his drug use, his drug habit is a long-term problem. He will most likely require ongoing professional assistance to ensure any rehabilitation is successful.
In May 2010, the applicant was previously warned by the Department that his visa may be cancelled if he continued to re-offend. On 17 May 2010, the applicant signed a declaration stating he understood that he could again be considered for cancellation of his visa if further information of relevance came to the attention of the Department. Despite this warning from the Department and the acknowledgement of the applicant about potential consequences for his visa status, he continued to re-offend.
I consider the applicant to be a high risk of re-offending. Given the extremely serious nature and breadth of the applicant’s conduct, the significant harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct and the unacceptable risk of the applicant re-offending, I am satisfied this primary consideration has significant weight against revocation of the mandatory cancellation decision.
PRIMARY CONSIDERATION (B) – BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 13.2 of Direction No. 79 provides that decision-makers must determine whether revocation of the mandatory cancellation decision is in the best interests of minor children in Australia affected by the decision.
The applicant has two minor children under the age of 10 in Australia. The respondent accepts that the best interests of these children would be for the applicant to remain in Australia. The question is what weight should be attributed to this primary consideration.
There is very limited evidence about the applicant’s role in his children’s lives. The applicant has been in custody since March 2016, since his daughter was less than 2 years old and his son less than 4 years old. The children’s mother fulfils the primary parental role of caring for her children. Her ex-partner also continues to play the role of stepdad to the applicant’s children. At hearing, the applicant described how his children’s stepdad treated them well and was actively involved in their sporting activities. The children’s mother provided written statements in these proceedings dated 24 March 2017 and 9 March 2021 and gave evidence orally at hearing. She described the applicant as being a “tremendous father” who was “very hands on” prior to his incarceration. In her written statement dated 9 March 2021, she said:
“[the applicant] has shown how much he has change and gone through to become a better person for when he is finally released. My kids are also waiting for the day they can be reunited with their father and being a single mother, it would be helpful to have another parent in their lives to share the responsibilities with…”
When considering the best interests of minor children, I also need to consider whether the applicant’s conduct will have a negative impact on the children. As detailed in these reasons, the applicant’s criminal history is extensive and includes offences involving violence against women and a vulnerable victim. The applicant has a very long history of drug use which has contributed to his offending. Most concerning, the recent offence of sexual intercourse without consent was committed in the same room as the applicant’s children. These issues raise real questions about the applicant’s suitability as a parent and what positive influence, if any, he would have in his children’s lives.
This consideration favours revocation of the mandatory cancellation decision, however it is significantly outweighed by the other primary considerations.
PRIMARY CONSIDERATION (C) – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3(1) of Direction No. 79 provides that:
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.
The Principles to be applied, as set out in paragraph 6.3, state that the right of a non-citizen to be able to come to or remain in Australia is a privilege conferred in the expectation that he or she is and will be law-abiding. The applicant has committed several serious offences including offences of a violent and sexual nature. The Australian community would expect the applicant’s visa to remain cancelled.
The effect of paragraph 13.3(1) points to the likelihood that community expectations will in most cases call for non-revocation, without dictating an inflexible conclusion. Generally, the question for a decision-maker is the weight to be attached to this consideration.
The applicant has plainly not met the expectations of the Australian community that as a non-citizen he will obey the laws of this country. Having regard to the nature and seriousness of the applicant’s offending, and in accordance with the Principles contained in paragraph 6.3 of Direction No. 79, I am satisfied that the Australian community would expect that the applicant should not hold a visa. This primary consideration weighs heavily against revocation of the mandatory cancellation decision.
OTHER CONSIDERATION (A) – INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
This consideration is not relevant. The applicant does not raise any international non-refoulement claims.
OTHER CONSIDERATION (B) – STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
Paragraph 14.2(1) of Direction No. 79 sets out two main factors to be considered in assessing the strength, nature and duration of a person’s ties to Australia:
(a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the person began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents, and/or persons who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The applicant first arrived in Australia full-time at the age of 19 years old. He has 1 sister, 3 half-sisters, and 2 stepbrothers living in Australia as well as cousins, nieces and nephews, and aunts, uncles and “heaps of friends”. Some of these members of the community have provided statements in support of the applicant which show that he has some ties to the Australian community. It is accepted that the applicant has strong ties to Australia, particularly to his extended family members, friends and children who would be affected if the applicant was deported to New Zealand.
While I do accept the applicant’s separation from his family members, friends and children may be difficult, it would not be permanent in the sense that there are no restrictions, other than perhaps financial and current (temporary) travel restrictions, preventing the applicant’s family from visiting him in New Zealand in the future. They may also maintain contact with each other via telephone, video and other electronic means.
The applicant’s strength, nature and duration of ties to Australia favours revocation of the mandatory cancellation decision. However, I give less weight to this consideration for the following reasons.
The applicant started offending soon after arriving in Australia. He was convicted of 2 offences within 1 year of his arrival in Australia. In the 16 years he has spent in Australia, the applicant has spent 7 years and 9 months in custody.
There is limited evidence about positive contributions the applicant has made to the Australian community. The applicant left school at the end of Year 10. Although there is some evidence of employment, he has spent most of his time in Australia either unemployed and on social security benefits or in prison. There is no evidence of any wider community involvement.
OTHER CONSIDERATION (C) – IMPACT ON AUSTRALIAN BUSINESS INTERESTS
There is no evidence before me bearing upon the impact on any Australian business interests.
OTHER CONSIDERATION (D) – IMPACT ON VICTIMS
This consideration is not relevant.
OTHER CONSIDERATION (E) – EXTENT OF IMPEDIMENTS IF REMOVED
Paragraph 14.5 requires the decision-maker to have regard to the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account the non-citizen’s age and health, whether there are substantial language or cultural barriers, and any social, medical and/or economic support available to them in that country.
There is an absence of language and cultural barriers affecting the applicant on his return to New Zealand. The applicant grew up in New Zealand, having lived there for most of his formative years. There are no physical health issues or mental health issues claimed by the applicant as impediments. However, there was some suggestion in the sentencing remarks of Judge Colefax SC that the applicant suffered from post-traumatic stress disorder, antisocial personality disorder, and stimulant use disorder. Should the applicant need and/or seek treatment for these disorders in the future he would be able to receive care in New Zealand to the equivalent standard to that in Australia.
The applicant has previously raised some concerns over retaliatory attacks on him from a street gang in New Zealand. At hearing he advised he was “not really concerned” as he was not sure if they remembered him, but he did send a lot of them to prison. The last time he received a threat from a member of the gang was 16 years ago. Given the passage of time, I find any threat to the applicant unlikely but, should a threat come about, the applicant would have recourse to the criminal law/law enforcement of New Zealand.
The applicant advised at hearing that he has learnt some machining skills while in prison and would try to find work using these skills. He also said he aspired to be a forklift driver or truck driver. I do note however that the applicant has a very limited employment history having spent most of his time in Australia either unemployed or in prison. I accept that the applicant may face delays in obtaining employment and re-establishing his life in New Zealand.
The extent of impediments if removed to New Zealand weighs in favour of revocation of the mandatory cancellation decision.
DECISION
For the reasons outlined above, the primary considerations of the protection of the Australian community and expectations of the Australian community weigh heavily against revocation of the mandatory cancellation decision. To the extent that other considerations weigh in favour of revocation, they are insufficient to outweigh the protection of the Australian community and expectations of the Australian community.
57.Accordingly, the decision under review is affirmed.

I certify that the preceding 57 (fifty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.................................[sgd]................................
Associate
Dated: 30 March 2021

Date of hearing: 15 March 2021

Applicant: Self-represented

Solicitor for the Respondent: Mr J Hutton, Australian Government Solicitor

[2021] AATA 862

30 March 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Proportionality

Date of hearing:	15 March 2021
Applicant:	Self-represented
Solicitor for the Respondent:	Mr J Hutton, Australian Government Solicitor