Campbell and Minister for Immigration and Border Protection (Migration)

[2018] AATA 383

Campbell and Minister for Immigration and Border Protection (Migration) [2018] AATA 383 (5 March 2018)

Division:GENERAL DIVISION

File Number(s):      2017/7445

Re:Tony Campbell

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:5 March 2018

Place:Sydney

The decision under review is set aside. The Tribunal decides in substitution that the cancellation decision is revoked.

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

Senior Member A Poljak

Catchwords

MIGRATION – mandatory visa cancellation – character test – substantial criminal record – whether there is another reason why the original decision should be revoked – Direction 65 – protection of the Australian community – nature and seriousness of the relevant conduct – the risk conduct may be repeated – evidence of rehabilitation – expectations of Australian community – decision under review set aside – decision in substitution that cancellation decision revoked

LEGISLATION

Migration Act 1958 (Cth) ss 499, 500, 501, 501CA

CASES

LMYW and Minister for Immigration and Border Protection (Migration) [2016] AATA 936

SECONDARY MATERIALS

Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Senior Member A Poljak

5 March 2018

1. The applicant, Mr Campbell, is a citizen of New Zealand. The applicant lived in Australia as a child between August 2000 and January 2004 and subsequently visited on a number of occasions prior to his last arrival in Australia on 18 October 2009, when he was granted a Class TY Subclass 444 Special Category (Temporary) Visa (“visa”).

2. On 29 November 2016, the Department of Immigration and Border Protection (“the Department”) issued the applicant a notice that his visa had been cancelled pursuant to section 501(3A) of the Migration Act 1958 (Cth) (“the Act”).

3. On 1 December 2016, the applicant submitted a request for revocation of the mandatory cancellation decision pursuant to section 501CA of the Act and on 31 March 2017, a delegate of the Minister for Immigration and Border Protection (“Minister”), decided not to revoke the decision to cancel the applicant’s visa. This is the decision under review in these proceedings (“the reviewable decision”).

4. The issues to be determined in these proceedings are whether the applicant meets the character test as defined in s 501(6) the Act, and if not, whether there is another reason why the mandatory cancellation should be revoked (s 501CA(4)(b)(ii)).

   RELEVANT LEGISLATIVE PROVISIONS

5. Section 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 sections 501(6) and 501(7).

6. Section 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).

7. Section 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.

8. Section 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.

9. The power of the Tribunal to review the decision to cancel the applicant’s visa is provided by section 500. Under subsection 499(1) the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is Direction no.65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA which commenced on 23 December 2014 (“the Direction”).

   CHARACTER TEST

10. The applicant does not pass the character test in subsection 501(6) of the Act because he has a substantial criminal record as defined by section 501(7)(c).

    DIRECTION NO. 65

11. Paragraph 7 of the Direction sets out how the discretion is to be exercised. Informed by the principles in paragraph 6.3, I must take into account the considerations in Part C, in order to determine whether to revoke the mandatory cancellation of the applicant’s visa.

12. Under the heading General Guidance (paragraph 6.2), the Direction provides in part:

    (1)  The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below 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.

13. In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion should be approached. 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 vulnerable members of the community such as minors, 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 a non-citizen’s visa should be cancelled, or their visa application refused.

14. The Direction at paragraph 8 requires the decision-maker to take into account the primary and other considerations relevant to the individual case. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations.

15. The three primary considerations that the Tribunal must take into account are set out in paragraph 13(2) of the Direction as follows:

    (a) Protection of the Australian community from criminal or other serious conduct;

    (b) The best interests of minor children in Australia;

    (c) Expectations of the Australian Community.

    PRIMARY CONSIDERATION (A) – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

16. In determining this primary consideration, I note that I must have regard to matters set out in paragraph 13.1, 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…

    (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

17. The applicant accepts that his conduct to date should be viewed as serious. His criminal history in Australia is detailed in the National Police Certificate dated 25 March 2017 and includes three offences of driving while license cancelled or suspended and most significantly, the offences of ‘supply prohibited drug >indict. Quantity (not cannabis)’, for which he was sentenced to an overall term of 2 years and 2 months imprisonment. The details of the applicant’s offending are explored below.

18. In respect of the applicant’s driving offences, his recollection of the circumstances surrounding his first conviction for driving while disqualified on 1 April 2013 is very limited. As such, he cannot dispute the version of events contained in the COPS Records of NSW Police. In regards to the second offence on 31 August 2013, the applicant was caught driving whilst his licence was cancelled. The applicant states that his disqualification period had ended on 24 July 2013 and he was unaware that he needed to obtain a new licence from the RMS before driving. It appears that this explanation was accepted by the Magistrate and he received a section 10 good behaviour bond for the offence. The applicant’s third traffic offence on 2 August 2014 was for drive while licence suspended. The circumstances surrounding the offence were that the applicant’s license was suspended as a result of a fine default. At hearing, the applicant advised that prior to the offence he knew his license was suspended as a result of a fine default and had contacted the State Debt Recovery Office (“SDRO”) and arranged a payment plan. He said that he assumed that because he had reached an agreement with the SDRO, the suspension of his driver’s license would be automatically lifted. The applicant’s evidence in regards to this traffic offence is substantially supported by the version of events recorded in the COPS reports. Having regard to the particular circumstances of the applicant’s traffic offences, I am not satisfied that they are particularly serious. I am not convinced that they demonstrate a deliberate flouting and/or disregard of the law.

19. The Statement of Agreed Facts, signed by the applicant on 6 November 2015, details the applicant’s most serious offences of supply prohibited drugs. In summary, the agreed facts detail that the applicant supplied a total of 400 3,4-methylenedioxy-methylamphetamine (“MDMA”) tablets between 1 and 13 November 2014, and on 20 November 2014 the Police attended the applicant’s residence and recovered 34 MDMA tablets and $220 cash.

20. The seriousness of the applicant’s conduct is reinforced by the sentences imposed on him (paragraph 13.1.1(1)(c)). 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, the applicant has been sentenced to a term of imprisonment of greater than 12 months.

21. In sentencing, Judge Townsden remarked:

    “The offences are, however, objectively serious. Each offence is well above the threshold for the indictable quantity…In respect of parity to the previous sentence imposed upon the co-offender…the overall level of criminality in respect of the present offender is substantially higher…

    Having regard to the objective seriousness of the offending behaviour, I am satisfied that the only sentence which can be imposed in this case is a sentence of full-time imprisonment. The offences were for financial gain. Having regard to the amount involved, I am satisfied the objective seriousness of the offending behaviour for this type of offence involving the supply of an indictable quantity would not fall significantly below the midrange of offending behaviour for offences of this type.”

22. While I am satisfied that the applicant’s criminal history is serious, the applicant has never been convicted of a sexual or violent offence. The offences were not directed against vulnerable members of the community or officials. I note that the drug related offences, although technically ‘repeat’ offences occurred in a very short space of time. He has not re-offended after apprehension or conviction. Additionally, the applicant’s drug offences are of an entirely different character to the traffic offences and do not represent an increasing trend of seriousness.

    (b) The risk to the Australian community should the applicant commit further offences or engage in other serious conduct

23. In assessing whether the applicant represents an unacceptable risk of harm to the Australian community, regard must be had to paragraph 13.1.2 of the Direction, which provides that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Decision-makers must have regard, cumulatively, to (a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and (b) 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 applicant re-offending.

24. The nature of the harm to victims if the applicant were to reoffend in the future is serious, and could involve significant physical harm to members of the Australian community. The applicant accepts the supply of prohibited drugs causes harm to the community.

25. Turning to the likelihood of reoffending, the applicant states that after he committed the drug related offences in 2014, he turned his life around and made significant changes for the better; for example, he started playing rugby again, stopped partying, stopped taking drugs and disassociated himself from his prior associates and co-offenders. At hearing, the applicant said that his arrest in 2014 was a “wake up call”. He passionately expressed how he was glad that he was arrested because it “could have been a lot worse”. He said he does not know where he would have ended up if it weren’t for his arrest.

26. At the time the applicant committed the drug offences in 2014, he claims that he was partying a lot and using MDMA every weekend. On average he says that he was using 10-15 MDMA tablets a night. The applicant says that he has been drug free since he was charged with the drug offences in 2014. This is partially supported by the applicant’s results of regular urine drug tests, which were undertaken during the period January 2016 to 16 June 2016. The urine drug tests all returned a negative result for illicit and prescription drugs. During this period of drug testing, the applicant remained in the community and drug free.

27. There is no evidence to support a finding that the applicant was addicted to illicit drugs at any time.

28. During the period between November 2014 and September 2016, when the applicant lived in the community on bail, the applicant worked in the building industry and completed almost 2 years of his Bricklaying apprenticeship at TAFE. He took up Rugby Union, training and playing with the Campbelltown Harlequins. He has become involved in the leadership group of the rugby club, assisting with training, mentoring younger players and assisting with fundraising events. The applicant has also attended on a psychologist during this period.

29. In a report dated 1 August 2016, Neil Ballardie, consultant psychologist, confirmed that he had been treating the applicant since 17 March 2016. In regards to recidivism, Mr Ballardie opines:

    “In my opinion the likelihood of [the applicant] reoffending should be considered very low having regard to:

    1.    his ability to control his alcohol consumption and cease drug use since being charged with the index offence in November 2014;

    2.    his completing of his apprenticeship and having a clear and achievable career objective;

    3.    his engagement during assessment, his positive response to treatment, the insight he has gained into the aetiology of his condition and his commitment to make positive changes in his life;

    4.    his genuine remorse and regret at having offended and absence of prior offending.”  [Emphasis added]

30. The applicant was incarcerated between September 2016 and October 2017. The Department of Corrective Services Case Note Report for the applicant, confirms that while in custody, the applicant had no issues. The applicant worked in a number of roles, including working in ground maintenance and as a leading hand in the timber section, cutting timber and building furniture, and worked unsupervised outside the jail complex.

31. While incarcerated, the applicant completed the 4 month Gurnang Life Challenge Young Offender’s Program at Oberon Correctional Centre on 29 June 2017. Successful completion of the program has a vast number of outcomes, such as, social and personal responsibility, accountable for behaviour, job interview skills, develop career path, empathy, cycle of offending, owning the offence, goal setting etc.

32. Since his transfer to Villawood Detention Centre, the applicant was awarded a Certificate of Achievement for consistent involvement and outstanding leadership for his involvement in gym classes.

33. In an updated report of Mr Ballardie dated 21 December 2017, he confirms that he treated the applicant between March and August 2016. He reassessed the applicant on 16 December 2017 while he was incarcerated at Villawood Detention Centre via video link. Mr Ballardie states:

    “It appears [the applicant] has responded very positively to the treatment programs he completed while incarcerated. His mood and psychological functioning have improved since I last assessed him, he has a better self concept and reduced negative cognitions. I do not consider he needs to undertake any further treatment programs or attend counselling.”

34. In regards to the risk of reoffending, Mr Ballardie states:

    “After assessment of [the applicant], then evaluating his response to treatment and rehabilitation while incarcerated; in my opinion his risk of reoffending should be considered very low, taking into account:

    1.    his positive engagement during assessment, good level of insight and motivation to make positive changes in his life;

    2.    improvements in his mood, anxiety, self-concept and cognitions following treatment and interventions;

    3.    his completion of a number of practical and self-development programs and courses while incarcerated;

    4.    his positive engagement with work and sporting pursuits in the period after being charged with the index offences and prior to incarceration;

    5.    the absence of illicit drug consumption since being charge in 2014 and expressed commitment to maintain abstinence into the future;

    6.    his consistent work history, expressed commitment to complete his bricklaying apprenticeship and an employment offer on release from detention;

    7.    positive changes to the way he socialises and the elimination of antisocial cohorts;

    8.    his positive relationship with his partner and her parents;

    9.    his expressed remorse at having offended.” [Emphasis added]

1. In summary, Mr Ballardie opines:

   “[The applicant] appears to have responded positively to the experience of incarceration, to have addressed the underlying problems that led to him offending, and to have fully rehabilitated, I do not believe he currently has a drug use problem or is at risk of developing one in the future. I could not detect any mental conditions, issues or concerns that may impact on his psychosocial functioning. He appears to have built a positive social and sporting network while in Australia, has a supportive and ongoing relationship with his partner and her family and positive employment and career prospects. I believe he would benefit from a return to normalcy, that he could make a positive contribution to the community and I would not necessarily describe him as someone who would fail a character assessment.” [Emphasis added]

2. It is important to note that Mr Ballardie was unavailable for cross-examination at hearing. Despite this, his ultimate opinion in regards to the risk of the applicant reoffending is validated by the bulk of the evidence before me supporting a finding that the applicant has reformed. Satisfaction of the bulk of the factors identified by Mr Ballardie as being representative of reform can be established on the available evidence. As such, I do place some weight on his opinions in this regard. I do note however, that the respondent takes issue with the level of treatment received by the applicant. In his first report dated 1 August 2016, Mr Ballardie outlines a treatment plan for the applicant; it appears from the evidence of the applicant, that this treatment was not undertaken. However of significance, in his later report dated 21 December 2017, Mr Ballardie affirmed this opinion that the applicant was fully rehabilitated, citing that the applicant responded well to the treatment programs he completed while incarcerated. He confirmed that he could not detect any mental condition. It would appear that despite not undertaking Mr Ballardie’s original treatment plan, the applicant has himself undertaken positive steps to effect change.

3. The applicant has a strong support network in Australia in his girlfriend and her family. His girlfriend’s father, Mr Matthew, gave evidence by way of written statement and orally at hearing. He plainly understood the details of the applicant’s past criminal offending and confirmed that he supported the applicant through the criminal proceedings in 2016, but was still adamant that the applicant was welcome to live in his home and maintain a relationship with his daughter. I was struck by how positively he spoke about the applicant; in particular that he observed how the applicant had changed his life for the better since he was charged with the drug related offences in 2014. When asked if he thought the applicant would reoffend, Mr Matthew stated “No way in the world”. He reiterated how committed the applicant was to rugby, how much pride he takes in his work and his commitment to his relationship with his girlfriend.

4. The applicant’s girlfriend, Ms Matthew gave evidence orally at hearing. She confirmed that she had noticed a change in the applicant. She said that following the drug related charges in late 2014, the applicant has stopped going out, started to play football and “doesn’t hang out with bad people anymore”. Ms Matthew said that the applicant was “focused on himself and their relationship”.

5. I also have before me numerous letters of support from members of the community and extended family members of Ms Matthew, all of which I have read and considered. The bulk of which speak to the applicant’s reform and positive outlook for the future.

6. On balance, there is strong evidence that the applicant has reformed and will not reoffend. He has expressed genuine remorse and insight into his past offending behaviour and I am convinced that he is now focused on living a positive life through completing his apprenticeship, focusing on rugby and his relationship with his girlfriend. While it is not possible to say there is no risk that the applicant will reoffend, I am satisfied that the very low risk of reoffending in this case, is acceptable.

7. As I am not satisfied that there is a significant risk that the applicant will engage in further criminal or other serious conduct of the nature of which he has been involved in the past, I am satisfied that he does not pose a significant risk of substantial harm to the Australian community.

8. For the above reasons, applying the guidance in paragraphs 13.1.1(1) and 13.1.2(1) and (2) of the Direction, I am satisfied the first primary consideration does not weigh heavily against the exercise of the discretion notwithstanding the circumstances of the offending.

   PRIMARY CONSIDERATION (B) – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

9. There is no evidence that the applicant plays a parental role in the lives of minor children in Australia. Accordingly, this primary consideration is irrelevant in these proceedings.

   PRIMARY CONSIDERATION (C) – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

10. Paragraph 13.3(1) of the Direction provides:

    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.

11. In making the Direction, the Minister has made it clear 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’ (at paragraph 13.1(1)). 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.

12. Clearly the applicant has not met the expectation that as a non-citizen he will obey the laws of this country. The applicant has breached the trust of the Australian community by committing offences of a type that could endanger the safety of members of the community.

13. Relevantly, paragraph 13.3(1) of the Direction indicates that cancellation may be appropriate simply because the nature of the offences is such that the Australian community would expect that the person should not hold a visa.

14. In LMYW and Minister for Immigration and Border Protection (Migration) [2016] AATA 936 (24 November 2016) at [56] to [57], Deputy President McCabe discusses the objectives of sentencing in the criminal courts and the expectations of the community:

    [56]…The community also believes in the possibility of rehabilitation and redemption. That much is clear from s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) which sets out the objectives of sentencing in the criminal courts. In doing so, the legislation articulates the approach of the common law that was discussed in cases like Veen v R [1979] HCA 7; (1979) 143 CLR 458 and Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465. Those objectives include punishment or retribution, expiation, incapacitation, deterrence, denunciation – and rehabilitation.

    [57] It is one thing to say (as the Direction does) that the community is, in effect, entitled to be risk averse in the face of offending conduct. Most individuals who are the subject of visa cancellation proceedings under s 501 and its associated provisions insist they have been reformed and that they are unlikely to offend again. Given most of them have a history of previous offending, it is understandable that decision-makers and the community are sceptical of those claims. But that is not the same thing as saying the community does not value rehabilitation when there is cogent evidence before the decision-maker that suggests rehabilitation has genuinely occurred. The community is sceptical of individuals who claim to conform to widely shared values, but the community is not so cynical as to proclaim the value but simultaneously discount it when it is demonstrated. Someone who has genuinely rehabilitated might even hope to be embraced by the community. [Emphasis added]

15. As already detailed above, I am satisfied that the applicant has reformed. He has paid a heavy price for his offending by way of incarceration and has undertaken extensive steps to rehabilitate himself. I am convinced that the Australian community believes in both retribution and rehabilitation, which is an important objective of sentencing in the criminal courts. I am confident that this is a particular case where rehabilitation has proven successful. We as a community should positively acknowledge this outcome and I am satisfied that the Australian community would expect the applicant to be given a second chance and would not expect his visa to remain cancelled.

16. This primary consideration weighs in favour of revocation.

    OTHER RELEVANT CONSIDERATIONS SET OUT IN DIRECTION NO. 65

17. Paragraph 14 of the Direction provides for other considerations relevant to deciding whether the cancellation of the applicant’s visa should be revoked including the strength, nature and duration of his ties to Australia and the extent of impediments if the applicant were removed from Australia.

18. Other considerations such as international non-refoulement obligations, impact on victims and the impact on Australian business interests are not relevant considerations in these proceedings.

    Strength, nature and duration of ties to Australia

19. Paragraph 14.2(1) of the Direction 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 non-citizen 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; and

    b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents, and/or people 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).

20. The respondent acknowledges, and I accept, that the applicant has significant ties to Australia.

21. The applicant has resided in Australia since October 2009, when he was 17 years of age. He has worked continually since arriving in Australia in late 2009 and between 2014 and 2016 contributed to the community through his employment, and his sporting and community activities. The applicant’s drug related offences occurred in November 2014, some 5 years after he last arrived in Australia in late 2009. The applicant has spent the majority of his adult life contributing positively to the Australian community.

22. The applicant has been in a committed relationship with Ms Matthew, an Australian citizen, since early 2015. Ms Matthew has suffered from and received treatment for anxiety and depression for over 10 years, and has been hospitalised on 4 occasions for her mental health issues, most recently, in early 2017. She is currently on prescription medication to manage her mental health issues. Non-revocation of the cancellation of the applicant’s visa would have a significant impact on Ms Matthew. Ms Matthew advised that if the applicant loses his visa “her whole world will come down” and if the applicant were sent back to New Zealand, she would relocate to be with him. This poses a number of issues, particularly as a result of Ms Matthew’s mental health issues. The respondent accepts that Ms Matthew’s relocation to New Zealand would cause her issues.

23. Ms Matthew’s treating psychologist, Ms Kate Glancey, states in a letter dated 23 January 2018, that Ms Matthew has been suffering anxiety from a young age and episodes of debilitating anxiety since her early teens. Ms Glancey records:

    “I have considered your question regarding the impact on [Ms Matthew] if [the applicant] was required to leave Australia. I have great concern regarding [Ms Matthew’s] capacity for resilience in light of such a stressor. Her history of mental disturbance leaves her vulnerable to further episodes of mental disturbance in response to significant life stressors. Her emotional investment in this relationship is such that permanent separation from [the applicant] would represent a major crisis in her life and would undoubtedly trigger mental disturbance, including both anxiety and depression. I am also of the view that [Ms Matthew’s] poor emotional resilience would likely undermine her potential to isolate herself from her current network of support provided by family and close friends, hence I doubt her capacity to relocate to a foreign country, even if it(sic) were to maintain a relationship with [the applicant].”

24. In a statutory declaration dated 22 January 2018, Ms Matthew discusses her current employment and states that her job is as an animal attendant. It is her dream job. She advises that she has been trying to get into this type of work since 2010 since she left high school. At hearing, Ms Matthew confirmed that she loved her job. She advised that she had worked in her current role for 6 months and that it took a very long time for her to complete her qualification in Animal Studies. Ms Matthew has grave concerns in her ability to find employment in New Zealand.

25. Mr Matthew corroborated Ms Matthew’s evidence and said at hearing that his daughter was finally happy as she has her dream job. He said that she is happy to go to work and it appears to help her with her anxiety because she spends a lot of time with animals. Mr Matthew said that he has concerns for his daughter if she were to relocate to New Zealand. While he accepted that he and his wife could stay in contact with Ms Matthew via telephone, he said that it would be difficult for them financially to visit her. As a result, Ms Matthew would be without her support network in New Zealand and her depression and anxiety would likely return.

26. For the above reasons, I am satisfied that the applicant’s removal from Australia would result in significant hardship to an Australian citizen. Ms Matthew would face a number of difficulties if she relocated to New Zealand, most significantly, an exacerbation of her mental health issues as a result of her separation from her family and her support network and as a result of losing her employment. This factor weighs heavily in favour of revocation.

    Extent of impediments if removed

27. I have taken into account that the applicant has concerns about returning to New Zealand. While the applicant may well face some initial difficulty re-establishing himself in New Zealand, it cannot be said that the extent of the impediment would be insurmountable.

28. The applicant is currently 25 years of age and arrived in Australia at approximately 17 years of age. He has spent most of his life in New Zealand. The applicant’s mother currently resides in New Zealand as does his father and siblings.

29. There is no substantive language or cultural barrier to the applicant returning to New Zealand. There is no evidence before me that the applicant is affected by any health conditions affecting his ability to obtain employment. In any event, as a New Zealand citizen he would have access to a social welfare and a public health system, comparable to those of Australia, which would be available to him if he were to suffer any financial or medical hardship.

30. Accordingly, I consider that this factor favours non-revocation.

    CONCLUSION

31. As I have explained, the first primary consideration does not count heavily against the exercise of the discretion. The third primary consideration actually weighs in favour of the exercise of the discretion. In regards to the other considerations, the applicant’s significant ties to the Australian community weigh heavily in his favour.

32. On balance, I am satisfied the discretion should be exercised in the applicant’s favour. In those circumstances, I set aside the decision under review and decide in substitution that the cancellation decision should be revoked.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 5 March 2018

Date(s) of hearing:	19 February 2018
Solicitors for the Applicant:	S Hunt, Supra Legal
Solicitors for the Respondent:	M Donald, Sparke Helmore Lawyers