Bochenski and Minister for Immigration and Multicultural and Indigenous Affairs

[2005] AATA 711

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 711

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2005/432

GENERAL ADMINISTRATIVE  DIVISION

Re:         ZBIGNIEW BOCHENSKI

Applicant

And:       MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal:       G.D. Friedman, Senior Member

Date:             27 July 2005

Place:            Melbourne

Decision:The Tribunal sets aside the decision under review and remits the matter to the respondent with a direction that the Transitional (Permanent) visa held by the applicant not be cancelled on character grounds.   

(sgd) G.D. Friedman

Senior Member

MIGRATION - Transitional (Permanent) visa ‑ cancellation - criminal record - character test - exercise of discretion

Migration Act 1958 s 499(1), 499(2A), 501(2), 501(6), 501(7), 501G

Re Muirson and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1270

Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121

R v McKee; R v Brooks (2003) 138 A Crim R 88

Re Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

27 July 2005   G.D. Friedman, Senior Member

1.        This is an application by Zbigniew Bochenski (the applicant) for review of a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the respondent) dated 20 April 2005 to cancel the applicant's Transitional (Permanent) visa (the visa).  

2.        At the hearing on 18 July 2005 Mr G. Hughan of counsel represented the applicant.  Mr B. Wee, solicitor with the Australian Government Solicitor, represented the respondent.  

3. The Tribunal had before it the documents lodged under s 501G of the Migration Act 1958 (the Act) (G1‑G20), nine exhibits (Exhibits A1‑A9) lodged by the applicant and one exhibit (Exhibit R1) lodged by the respondent. 

BACKGROUND

4.        The applicant was born on 29 August 1980 in Poland.  He arrived in Australia with his family on 17 March 1988 and was granted a permanent visa.  He has lived in Australia since then.

5.        Between December 1996 and August 2004 the applicant was convicted of a number of offences and served several periods of imprisonment:

Date	Offence	Sentence
13/12/96	Armed Robbery	12 month probation
28/02/97	§  Robbery/assault with intent to rob §  Intentionally or recklessly cause injury	10 month youth probation order
06/10/98	Theft of a motor vehicle §  Exceed prescribed concentration after 3 hours on breath §  Unlicensed driving §  Fail report to police owner not present §  Careless driving	6 month community based order with125 hours of unpaid community service and licence disqualified for 9 months
15/06/99	Possess heroin §  Use heroin §  Traffick heroin §  Handle/receive/retention stolen goods	6 months detention in youth training centre on each charge
25/08/99	§  Theft of a motor vehicle §  Exceed prescribed concentration after 3 hours on breath §  Unlicensed driving §  Fail report to police owner not present §  Careless driving	21 days in a youth detention centre on each charge
06/01/00	Act prejudicial to good order or management in gaol	$500 fine

15/06/01	§  Fail to answer bail §  Make threats to kill §  Assault with weapon §  Unlawful assault §  Theft Obtain property by deception	12 months community based order with 175 hours of unpaid community service
20/12/01	§  Fail to comply with community based order §  Make threats to kill §  Assault with weapon §  Theft §  Obtain property by deception §  Unlawful assault §  Fail to answer bail	3 months imprisonment wholly suspended for 12 months and $1000 fine
04/07/02	§  Traffic heroin §  Possess property being proceeds of crime §  Breach of suspended sentence order §  Breach re 20/12/01 §  Make threats to kill §  Assault with weapon §  Intentionally damage property §  Act in a disruptive/abusive manner Theft	12 months imprisonment with 6 month non-parole period Suspended sentence of 3 months imprisonment wholly restored 5 days imprisonment for damage property
06/10/03	§  Burglary §  Theft §  Go equipped to steal/cheat	15 months imprisonment with 6 month non-parole period
04/02/04	Indecent/offensive language ‑ PTC §  Vehicle/Premises §  Fail to leave rail premises upon request §  State false name and address §  Assault/resist PTC/RC officer (2 counts)	Fined $1000
22/06/04	§  Unlawfully on premises (2 counts) Wilfully damage property Theft (4 counts) Burglary (4 counts) Attempted burglary Failure to answer bail Theft from motor vehicle §  Go equipped to steal/cheat	18 months imprisonment with 12 month non-parole period
26/07/04	§  Enter building with intent to steal (2 counts) §  Theft (2 counts)	12 months imprisonment to be served concurrently with previous sentences
03/08/04	Handle/receive/dispose of stolen goods	1 month imprisonment to be served concurrently with previous sentences

6.        On 2 August 2002 the Department of Immigration and Multicultural and Indigenous Affairs (the Department) sent the applicant a Notice of Intention to Consider Cancelling his visa (the notice) on the basis of convictions on 4 July 2004 and his criminal history while in Australia.  The visa was not cancelled.

7.        On 27 October 2004 the Department sent the applicant a further notice on the basis of later convictions; and a further notice still on 11 January 2005, based on his behaviour while in custody.  On 20 April 2005 a delegate of the respondent cancelled the applicant’s visa.  On 20 May 2005 the applicant lodged an application with the Tribunal seeking review of the respondent's decision.

8.        The issue before the Tribunal is whether the Tribunal should exercise its discretion to cancel the applicant’s visa.     

EVIDENCE

9.        In a written statement signed on 18 July 2005 (Exhibit A1) the applicant stated that he had just commenced schooling in Poland before migrating to Australia at the age of 7.  He found it difficult to settle into a new environment because he had no knowledge of English.  He described the problems he encountered at school and frequent incidents of teasing and racism, as well as a difficult home life because of disputes between his parents.  He stated that drugs were freely available at the high school he attended and he began to use cannabis and heroin.

10.      The applicant said that he completed Year 11 but by this time he had developed a drug habit and began to commit crimes to support his habit, resulting in appearances at the Dandenong Children’s Court and convictions in 1996 and 1997 for armed robbery and assault.  He said that in 1998 he received a community‑based order for car theft and driving offences, and in 1999 he received his first custodial term in a Youth Training Centre for drug‑related matters.

11.      The applicant stated that in 2001 he was homeless and was befriended by Ms R. Dahlman, with whom he commenced a relationship.  She became pregnant in March 2002.  The relationship ended when the applicant was gaoled in July 2002.  He explained that his first term of imprisonment occurred in 2002 after he breached the community‑based order by committing offences relating to drugs, assault and theft.  On 12 December 2002 Ms Dahlman gave birth to a daughter, Michaela.  As the applicant was in custody he was not permitted to be present at the birth.  However, he said that after his release he had regular contact with Michaela.  The applicant said that at this time he obtained employment as a fork lift driver for several months, but resumed drug‑taking and was arrested for committing a burglary.  He said that in June 2004 he was sentenced to 18 months’ imprisonment, with a 12‑month non‑parole period, for the burglary and other property offences.

12.      In relation to his current period of incarceration, the applicant said that he has completed an intensive drug treatment course and has been drug‑free for the entire period.  He noted that his non‑parole period has expired but he has decided to complete his sentence because he wants to ensure that he has adequate supports in place before he is ready to take his place in the community.  He emphasised that he is ashamed of his criminal history and believes that with the support of his family he will not commit further offences.  The applicant added that he has not had contact with extended family in Poland since arriving in Australia, and would find living in Poland to be almost impossible, especially as he cannot speak Polish.

13.      In oral evidence the applicant referred to his difficult home life, his problems at school and his homelessness when he was 14 years old, as factors in his drug use and criminal convictions.  He expressed remorse for his actions.  He produced certificates (Exhibit A3) confirming completion of a number of courses including a parenting program.  In relation to Michaela, he told the Tribunal that he has not seen the child during his current term of imprisonment because of the difficulties involved in arranging for her mother to bring her the considerable distance from home.  He referred to his regular contact with Michaela before his incarceration and said that he was determined to play a meaningful role in the child’s life.

14.      The applicant reiterated that he intends to use the remaining parole period to undertake further programs to equip him with the necessary skills to keep away from the people and situations that led to his criminal behaviour.  Under cross‑examination he agreed that he has relapsed in the past, but maintained that he now has the maturity and a sense of responsibility to avoid his earlier mistakes.  He said that he remains in close contact with his family, who have been an important support system and have demonstrated an ongoing commitment to helping him in the future.

15.      In a written statement signed on 18 July 2005 (Exhibit A4) Ms E. Bochenska, the applicant’s mother, stated that the applicant was the victim of teasing at school because of his language difficulties, so she sent him to a secondary school that had a recognised program for teaching English as a second language.  However, she said that the applicant was easily influenced by other students and began to take drugs and engage in anti‑social behaviour.  Ms Bochenska stated that despite several relapses, when the applicant resumed contact with former associates, she believes that he has improved himself during his current gaol term, and has the full support of family members.

16.      In oral evidence Ms Bochenska said that she maintains regular contact with the applicant and believes that his decision not to seek parole at this stage will assist him to adjust to life in the community on his release.  Under cross‑examination she said that she has kept in contact with Ms Dahlman and has seen Michaela on several occasions.  Ms Bochenska told the Tribunal that the applicant misses his daughter and is anxious to resume contact with her.

17.      In a written statement dated 18 July 2005 (Exhibit A5) Ms A. Bochenska, the applicant’s sister, stated that she and the applicant have always been close.  She described him as a very warm-hearted, understanding and supportive person, and said that his association with the wrong crowd had contributed to his criminal behaviour and drug‑taking.  Ms Bochenska said that if the applicant is permitted to remain in Australia she will give him her support, and she expressed confidence that he will remain drug‑free at the end of his gaol term and will not offend further.

18.      In oral evidence Ms Bochenska said the applicant loves and misses his daughter.  She said that she will support his efforts to adopt a responsible attitude to his role as a father, and that Michaela has spent time with her and her own child.

19.      In a written statement dated 18 July 2005 (Exhibit A6) Mr E. Bochenski, the applicant’s brother, said that at school he and the applicant began to associate with students who used drugs, and this led to criminal behaviour.  He noted that in 2001 he was sentenced to a term of imprisonment for armed robbery, and that during the two‑year non‑parole period he was able to focus successfully on changing his lifestyle.  He stated that he believes the applicant’s earlier sentences were too short for meaningful changes to be made, and that the applicant’s decision to remain in gaol was correct.  Mr Bochenski said that the applicant has no prospects in Poland. He said the applicant would have his complete support if permitted to remain in Australia.

20.      In oral evidence Mr Bochenski said that he has regular contact with the applicant, and believes that the applicant has finally grown up.  Under cross‑examination he told the Tribunal that he has seen Michaela a number of times and that the applicant cares deeply about her.  Mr Bochenski remained confident that with family support the applicant has excellent prospects for the future.

21.      In a written statement dated 13 July 2005 (Exhibit A7) Ms J. Politowski, a family friend, said that she has known the applicant since 1999 and has seen him regularly.  She stated that she was aware of the many setbacks in his life due to drug addiction, but described him as a hard worker and of good character.  She said that with support and encouragement from family and friends, plus counselling and employment, the applicant may be able to overcome his past difficulties.  In oral evidence Ms Politowski said that life in Poland would be extremely difficult for the applicant.

22.      In oral evidence Ms Dahlman stated that she took Michaela to visit the applicant when the child was aged 6 weeks, and the applicant attended her fist birthday celebrations.  She told the Tribunal that she believes the applicant has a good heart and has recognised that he has lost something important in not being able to see Michaela while in gaol.  She said that the applicant has sent birthday presents to the child, and she supported his expressed desire to play an active role as a father.  She confirmed that financial constraints and the distance from the applicant’s gaol have prevented her from taking Michaela to visit him.  Under cross‑examination Ms Dahlman agreed that she is willing to facilitate contact between the applicant and Michaela when he is released.

CONSIDERATION OF THE ISSUES

23. Under s 501(2) of the Act, the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he or she passes the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds in s 501(6)(a)‑(d) is met. Section 501(6)(a) of the Act provides:

(a)the person has a substantial criminal record (as defined by subsection 7))…

Section 501(7)(b) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

24. Under s 499(1) of the Act, the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583).

25. On 23 August 2001 the Minister, exercising powers under s 499(1) of the Act, issued Direction N° 21, Visa Refusal and Cancellation under s 501 (Direction 21), which provides guidance to decision‑makers in making decisions to refuse or cancel a visa under s 501 of the Act, including the exercise of the discretion to decide whether a non‑citizen should be permitted to enter or remain in Australia in circumstances where that person does not pass the character test.

26.      Paragraph 2.2 of Direction 21 provides that:

…a decision‑maker should have regard to three primary considerations and a number of other considerations… Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

Paragraph 2.3 of Direction 21 sets out the primary considerations:

2.3      In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a)       the protection of the Australian community, and members of the community;

(b)       the expectations of the Australian community; and

(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

Paragraph 2.4 of Direction 21 explains:

2.4      The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community…

27.      Examples of the matters that the Government views as serious offences are set out in paragraph 2.6 of Direction 21.  These include 2.6(a) drug‑related crime; 2.6(e) armed robbery; 2.6(f) assault or any other form of violence against persons; and 2.6(n) any other crimes involving violence or threat of violence which cause concern to the welfare and safety of the Australian community.

28.      Paragraph 2.8 of Direction 21 states that when exercising discretion, decision‑makers must take into account any relevant factors provided by the non‑citizen as mitigating factors.

29.      Paragraphs 2.10 and 2.11 of Direction 21 refer the decision‑maker to the likelihood that the conduct may be repeated (including any risk of recidivism), and to general deterrence – that is, the likelihood that visa refusal or visa cancellation would prevent (or inhibit the commission of) like offences by other persons.  

30.      Paragraph 2.17 of Direction 21 states that, when considering the issue of visa refusal or cancellation, other considerations may be relevant, although they will generally be given less individual weight than that given to the primary considerations.  These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non‑citizen’s family; the degree of hardship caused to immediate family members; the family composition of the non‑citizen’s family, both in Australia and overseas; any evidence of rehabilitation and any recent good conduct; and whether the application is for a temporary visa or permanent visa.

31.      Mr Hughan conceded that the applicant does not pass the character test, but submitted that the Tribunal should exercise the discretion not to cancel his visa.  In respect of the primary considerations, Mr Hughan said that in assessing the protection of the Australian community the Tribunal must consider the seriousness and nature of the visa‑holder’s conduct, the likelihood that such conduct may be repeated and whether cancellation may prevent or discourage similar conduct.  He conceded that trafficking in drugs was a very serious offence, but submitted that the applicant’s offences should be considered at the lower end of the scale because his trafficking was to support the applicant’s own dependence on drugs.  He said that none of the remaining offences could be categorised as very serious under Direction 21, and most offences involving burglary were committed while no other person was present.

32.      Mr Hughan referred to the good conduct by the applicant during his current term of imprisonment, the steps taken by him to undertake educational, training and development programs, and his efforts to arrange support and accommodation before considering seeking release.  As to general deterrence, Mr Hughan said that the delegate of the respondent was correct in placing little weight on this factor in all the circumstances.

33.      In respect of the second primary consideration, concerning the expectations of the Australian community, Mr Hughan submitted that middle‑of‑the-road, reasonable members of the Australian community, who were fully aware of the applicant’s circumstances and of his offending, would expect a humane approach to be taken, and would not expect him to be removed permanently from Australia.  He noted the applicant’s youth when he began offending his lack of English and his experiences at school.  Mr Hughan referred to R v McKee; R v Brooks (2003)138 A Crim R 88 in which the Victorian Court of Appeal listed age, social or economic disadvantage, poor education and emotional or physical abuse among a number of factors affecting the moral culpability of an offender who commits a crime as a consequence of addiction to drugs.

34.      Mr Hughan also referred to Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 121, in which Moore and Gyles JJ said at paragraph 29:

…

It is one thing to say that the responsibility to determine who should be allowed to enter or to remain in Australia in the interests of the Australian community ultimately lies with the discretion of the responsible minister. That has little to do with the permanent banishment of an absorbed member of the Australian community with no relevant ties elsewhere. The appellant has indeed behaved badly, but no worse than many of his age who have also lived as members of the Australian community all their lives but who happen to be citizens. The difference is the barest of technicalities. It is the chance result of an accident of birth, the inaction of the appellant’s parents and some contestable High Court decisions. Apart from the dire punishment of the individual involved, it presumes that Australia can export its problems elsewhere.

35.      In respect of the third primary consideration, concerning the best interests of a child, Mr Hughan submitted that Michaela’s best interests are clearly served by regular contact with both parents.  He said that although the applicant has not had recent contact with the child because he is incarcerated in a gaol that is located a considerable distance from the child’s home, the applicant has demonstrated that he wishes to be closely involved in his daughter’s upbringing.  He noted Ms Dahlman’s evidence that she supports such involvement, even though they are no longer a couple.  Mr Hughan submitted that cancellation of the applicant’s visa would effectively terminate all meaningful contact between the applicant and Michaela, given the distance between Poland and Australia and the limited financial resources available to each parent to maintain telephone or personal contact.

36.      In respect of the other considerations referred to in paragraph 2.17 of Direction 21, Mr Hughan submitted that the applicant is part of a close and supportive family, as demonstrated by their willingness to attend the Tribunal and give oral evidence.  He submitted that cancellation of the visa would have an adverse effect on the family.  He also referred to the hardship that the applicant would suffer if forced to re‑locate to Poland, where he has little knowledge of the language and culture after being raised in Australia, and has no ongoing relationship with extended family .

37.      In respect of the primary considerations, Mr Wee submitted that the applicant’s convictions reveal a high proportion of offences that Direction 21 considers to be very serious offences, spread across three categories, involving drugs, home invasion and violence and threats of violence against the person.  He noted that between December 1996 and August 2004 the applicant was convicted of 68 offences on 14 occasions and has been sentenced to 53 months’ imprisonment.  He conceded that the sentences have been at the lower end of the scale, but have resulted in terms of 15 months, 18 months and 12 months imprisonment.

38.      Mr Wee stated that on two occasions the applicant committed very serious offences while on parole after periods in gaol. He said that the circumstances were similar to those in Re Sam and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1003, in which the Tribunal affirmed the decision to cancel a visa. He said that, on past conduct, there was a strong likelihood of recidivism by the applicant. Mr Wee said that the circumstances of this application are different from those in Nystrom because in that matter the applicant had spent more time and a greater proportion of his life in Australia. 

39.      Mr Wee said that the Australian community would expect that a person with the number and frequency of the applicant’s convictions for serious offences, together with his re‑offending while on parole, would have his visa cancelled.  He stated that although the Australian community would take into account the availability of treatment programs in prison, the applicant has continued to re‑offend (Re Muirson and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 1270).

40.      In respect of the best interests of the child, Mr Wee noted that the applicant has had no contact with Michaela for 14 months during his current term of imprisonment, and said that this represents a significant proportion of the child’s life.  He stated that if the applicant departed from Australia it is unlikely that there would be lasting effects on the child.  Therefore, this primary consideration should be given little weight.  He said that telephone and other non‑personal contact would be possible from Poland. 

41.      In respect of the secondary considerations, Mr Wee acknowledged that the applicant’s family members have offered strong support.  However, he noted that the applicant did not live with his mother or siblings when not in gaol, so the nature of the family relationship was not clear.  Mr Wee also stated that the Tribunal should not be satisfied that the applicant has rehabilitated himself in view of his past episodes of re‑offending.  He noted that the applicant was warned previously about the possibility of the cancellation of his visa.  Mr Wee acknowledged that the applicant may face hardship if forced to return to Poland, but submitted that under the Act and Direction 21 the Tribunal should focus on the impact on others rather than on the applicant himself.

42.      In reaching its decision the Tribunal takes into account the documentary and oral evidence and the submissions made at the hearing.

43.      There was no dispute, and the Tribunal finds, that the applicant does not pass the character test in s 501(6)(a) of the Act.  

44.      In considering whether to exercise its discretion under s 501(1) to cancel the applicant’s visa the Tribunal has had regard to Direction 21 as a guide.

45.      In respect of the first primary consideration, concerning protection of the Australian community, there is no doubt that some of the offences come within the category of very serious offences; although the Tribunal agrees with Mr Hughan that generally they are at the lower end of the scale.  The Tribunal also takes into account that some of the offences appear several times in the list of offences but refer to the same charges.  On the question of the risk of recidivism, the Tribunal notes that the applicant is a repeat offender who has been regularly before the courts since 1996.  However, the Tribunal takes into account the undisputed evidence that the applicant has remained drug‑free for 14 months and has completed various courses in gaol.  He has demonstrated a mature and responsible attitude in not seeking immediate release before he is satisfied that he is ready to take his place in the community.

46.      The Tribunal accepts the evidence from the family members that the family is close and that they are willing to offer support to the applicant on his release.  The Tribunal notes that the applicant’s brother has completed a parole period after a lengthy term of imprisonment and is prepared to assist the applicant in his rehabilitation.  Although the applicant committed offences after earlier terms of incarceration, the Tribunal takes into account his age when those offences were committed and the nature and circumstances of the offences.

47.      The applicant has also shown a responsible attitude by not accepting immediate release for the purposes of bolstering his chances in these proceedings by, for example, seeking urgent contact with Michaela, to impress the Tribunal about his wish to increase his involvement in her life.  On the question of general deterrence the Tribunal agrees with Mr Hughan that in the circumstances little weight should be given to this factor.

48.      In respect of the second primary consideration, concerning expectations of the Australian community, the Tribunal notes that the Australian community expects that non‑citizens will obey Australian laws while in Australia.  The Tribunal takes into account the seriousness and frequency of the offences committed by the applicant.  However, the Tribunal accepts the submission by Mr Hughan that middle‑of‑the‑road members of the Australian community, who were fully aware of the applicant’s circumstances and of his offending, would expect a humane and compassionate approach to be taken.

49.      In this regard the Tribunal takes into account the applicant’s inability to speak English when he arrived in Australia, his difficulties at home and at school and his homelessness at an early age.  His efforts to rehabilitate himself during his current term of imprisonment, his family support and the desire to build a meaningful relationship with his child are significant factors that may contribute to satisfying the Australian community that he would, if given the opportunity to remain in Australia, become a responsible member of the wider community.

50.      In respect of the third primary consideration, concerning the best interests of a child, the Tribunal accepts the applicant’s evidence and the evidence from Ms Dahlman that the applicant has shown a genuine desire to play an active role as a father and that he maintained significant contact with the child before his current gaol term.  The Tribunal also accepts that due to the distance between the child’s residence and the applicant’s gaol, together with the financial resources of the applicant and Ms Dahlman, no adverse inference should be drawn about the failure of the applicant to have direct contact with Michaela during the past 14 months.

51.      The Tribunal accepts the submission by Mr Hughan that Michaela’s best interests are best served by regular contact with both parents.  The Tribunal accepts the evidence from Ms Dahlman that she would facilitate liberal contact between the applicant and the child upon his release from gaol.  The Tribunal does not accept the submission by Mr Wee that the applicant would be able to maintain contact with Michaela if he was forced to return to Poland.  Clearly there are no realistic prospects of visits by the child to Poland because of financial and other circumstances, and even telephone contact with a young child would be difficult.  The Tribunal agrees with Mr Hughan that cancellation of the visa would effectively prevent the applicant from playing a meaningful role in the child’s life.

52.      In respect of the other relevant considerations, the Tribunal has already referred to the applicant’s close family.  The family would be disrupted if the applicant was required to live in Poland, even though he had not been living with any of them on a permanent basis.  The Tribunal has also referred to efforts the applicant has made in gaol to rehabilitate himself, by completing various courses.  He has previously worked as a fork‑lift driver, and has expressed an interest in pursuing other employment options. 

53.      In relation to the effect of cancellation of the visa on the applicant’s future, the Tribunal agrees with Mr Hughan that the applicant is unable to speak or write in Polish.  He has had no contact with extended family since arriving in Australia, and has no real connection with Poland.  He has not visited Poland since leaving that country as a child.  There are unlikely to be the support services or rehabilitation facilities in Poland that he would have access to in Australia.  His employment prospects and financial position would be poor, and his aspirations would almost certainly be difficult to realise.

54.      In weighing up all the circumstances of the primary considerations and then the secondary considerations, the Tribunal concludes, for the reasons given, that it should exercise the discretion not to cancel the applicant’s visa.

DECISION

55.      The Tribunal sets aside the decision under review and remits the matter to the respondent with a direction that the Transitional (Permanent) visa held by the applicant not be cancelled on character grounds.  

I certify that the fifty-five [55] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd)    Olympia Sarrinikolaou

Clerk

Date of hearing:  18 July 2005
Date of decision:  27 July 2005
Counsel for applicant:                  Mr G. Hughan
Solicitor for applicant:                  Nil
Advocate for respondent:            Mr B. Wee
Solicitor for respondent:              Australian Government Solicitor