Campbell and Minister for Immigration and Border Protection (Migration)

[2017] AATA 993

Campbell and Minister for Immigration and Border Protection (Migration) [2017] AATA 993 (27 June 2017)

Division:GENERAL DIVISION

File Number(s):      2016/6311

Re:Christopher Campbell

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Egon Fice, Senior Member

Date:27 June 2017

Place:Melbourne

The decision made by a delegate of the Minister on 14 November 2016 not to revoke the decision to cancel Mr Campbell's Class TY Subclass 444 Special Category (Temporary) visa is affirmed.

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Egon Fice, Senior Member

IMMIGRATION - application for revocation of mandatory cancellation of visa – where applicant fails character test - where applicant warned visa may be cancelled - serious criminal offending - where crimes motivated by methylamphetamine use - unacceptable risk of applicant reoffending -  where Australian community would expect non-revocation – where strength, nature and duration of ties of Australia weigh slightly in favour of revocation - decision affirmed

Legislation
Migration Act 1958 (Cth) ss. 499, 501, 501CA

Secondary Materials

Ministerial Declaration No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Scott Morrison MP, Minister for Immigration and Border Protection)

REASONS FOR DECISION

Egon Fice, Senior Member

27 June 2017

1. Mr Christopher Campbell is a New Zealand citizen. He was the holder of a Class TY Subclass 444 Special Category (Temporary) Visa granted on 11 August 2008.  He first arrived in Australia from New Zealand on 22 December 2001 when he was 11 years of age. He departed Australia and returned on three occasions following his first arrival, and most recently, Mr Campbell returned to Australia on 11 August 2008.

2. In a letter dated 22 January 2013 from the then Department of Immigration and Citizenship, Mr Campbell, who at that time was incarcerated at the Fulham Correctional Centre, was told that consideration was being given to cancel his visa under s. 501(2) of the Migration Act 1958 (the Migration Act). The ground stated for possible cancellation was that Mr Campbell had a substantial criminal record. The letter stated that before any decision was made, he was to have the opportunity to comment on the information to be considered by the decision-maker and to submit additional information if he wished to do so.

3. In a letter dated 28 February 2013 a delegate of the Minister for Immigration and Citizenship (as he then was) informed Mr Campbell that after taking account of all relevant considerations, he had decided not to cancel Mr Campbell’s visa on character grounds at that time. However he was given a formal warning which stated:

   Please note that the visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in the future. Disregard of this warning will weigh heavily against you if your case is reconsidered.

   On 7 March 2013 Mr Campbell signed an acknowledgement indicating that he had received the decision not to cancel his visa at that time and that he may be considered for refusal or cancellation of any visa in the future.

4. On 15 May 2013 Mr Campbell was released on parole. However, his parole was cancelled on 21 January 2014 due to a breach of condition. Later that month, he was convicted of theft of a motor car; theft; dealing in stolen goods; and causing damage to property. Mr Campbell was again granted parole on 28 October 2015 but that also was cancelled shortly thereafter, on 18 November 2015, for breaching conditions of his parole.

5. In a letter dated 15 September 2016 a delegate of the Minister informed Mr Campbell that his Class TY Subclass 444 Special Category (Temporary) visa was cancelled pursuant to s. 501(3A) of the Migration Act. It was cancelled on the ground that Mr Campbell did not pass the character test within the meaning of s. 501(6)(a) of the Migration Act. In accordance with the provisions in s. 501 CA(4)(a) of the Migration Act, Mr Campbell made representations to the Minister requesting revocation of the mandatory visa cancellation decision. In a letter dated 14 November 2016, a delegate of the Minister informed Mr Campbell that she had decided not to revoke the original decision. Mr Campbell then lodged an application seeking review of that decision by this Tribunal on 21 November 2016. Section 500(1)(ba) makes provision for review of a decision of a delegate of the Minister by the Tribunal under s. 501CA(4).

6. Mr Campbell accepted that he did not satisfy the character test set out in s. 501(6)(a) of the Migration Act. Therefore, the only issue I am required to determine is whether the delegate’s decision, refusing to revoke the mandatory decision to cancel Mr Campbell’s visa pursuant to s. 501(3A), was the preferable decision after taking into account Direction No. 65 (the Ministerial Direction) made pursuant to s. 499 of the Migration Act.

7. Section 499 of the Migration Act requires a decision-maker to take into account the Ministerial Direction when exercising the powers provided for in the Migration Act. Relevantly, it provides:

   (1)  The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

   (a)the performance of those functions; or

   (b)the exercise of those powers.

   (2A) A person or body must comply with the direction under subsection (1).

   MR CAMPBELL’S CRIMINAL HISTORY

8. Mr Campbell’s criminal offending began in 2008, when he was a minor aged about 17 years. It involved travelling on a train without a valid ticket, behaving in a disorderly manner while on the train including the use of offensive language and refusing to comply with a  request from an officer. It appears he also failed to answer bail. No conviction was recorded at that time and Mr Campbell was released into the community on a good behaviour bond. However on 14 September 2009 he was convicted of a breach of his good behaviour bond.

9. His next conviction was on 7 June 2010 at the Sunshine Childrens’ Court, the offence having being committed some time before then. On that occasion Mr Campbell was found guilty of careless driving of a motor vehicle, failing to give name/address and failing to stop the vehicle after an accident. It also appears he was then on a learner permit and he failed to have a qualified driver with him and did not have L plates displayed. Mr Campbell was also found guilty of exceeding the prescribed concentration of alcohol while driving the vehicle. Again, no conviction was recorded, the matter was adjourned to 2 May 2011 and Mr Campbell released on a good behaviour bond.

10. On 25 November 2011 Mr Campbell was convicted in the County Court on six counts of armed robbery. He was sentenced to 30 months imprisonment on each count. That amounts to a total sentence of 15 years. A significant portion of the sentence on five of those counts was to be served concurrently, resulting in an effective sentence of slightly more than 4 years. His Honour Judge Galluci, in the course of his sentencing remarks, described the offending in this way:

    Your offending involved the luring of six taxi drivers to various locations and then robbing them of their money and property at knifepoint. I note that the offences occurred within a short period of time; Charge 1 on 6 June, Charge 2 on 7 June of this year, Charge 3 on 10 June, charge 4 on 10 June, charge 5 on 13 June, and charge 6 on 13 June.

    You were intercepted by police on the morning of Tuesday 21 June and later interviewed by police at the Melbourne Police Station. During the interview you made full admissions as to your involvement in the six armed robberies and told police that you had committed these offences out of boredom and laziness. You acknowledge that they were cruel offences and your own fault.

11. Following his convictions in the County Court, Mr Campbell was further convicted in the Sunshine Magistrates Court of a number of offences as follows:

    6 Dec 2011possessed dangerous article in public place possess controlled weapons without excuse – fraudulently use reg label auth/req-rsa

    6 Dec 2011theft from motor vehicle (8 charges) – fail to answer bail – theft of a motor vehicle (8 charges)-drive whilst disqualified att-theft from motor vehicle (3 charges) – theft

    22 June 2012             theft

    7 March 2014             theft of a motor vehicle – go equipped to steal/cheat

12. The total sentence of imprisonment for the above offences was 24 months, to be served concurrently with the sentences handed down by the County Court.

    THE MINISTERIAL DIRECTION

13. As is set out in Section 2, paragraph 7 of the Ministerial Direction, the Tribunal must take into account the considerations in Part C in order to determine whether the mandatory cancellation of a non-citizen’s visa should be revoked. Paragraph 8 of the Ministerial Direction states:

    (1)  Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

    (2)  In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (3)  Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of the visa.

    (4)  Primary consideration should generally be given greater weight then the other considerations.

    (5)  One or more primary considerations may outweigh other primary considerations.

    PRIMARY CONSIDERATIONS

14. Part C, paragraph 13 of the Ministerial Direction deals with the primary considerations in respect of revocation requests. Relevantly, it provides:

    (1)…

    (2) In deciding whether to revoke the mandatory cancellation of a non-Citizen’s visa, the following are primary considerations:

    (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.

    Protection of the Australian community

15. Paragraph 13.1 of the Ministerial Direction states that when considering the protection of the Australian community, I am required to 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. Paragraph 13.1(2) states:

    (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.

    Nature and seriousness of Mr Campbell’s conduct

16. There can be no doubt that the criminal conduct engaged in by Mr Campbell, particularly the armed robberies, must be regarded as very serious. Mr Campbell’s armed robberies involved luring six taxi drivers to various locations and then robbing them of their money and property at knifepoint. In his sentencing remarks, Judge Galluci said at [5]:

    You told police that you had covered your face with sunglasses and a hood in most of the offences and that you had decided to use a knife to instil greater fear in the victims and have more chance of getting money from them.

17. As Judge Galluci said in his sentencing remarks, taxi drivers often work alone, throughout the night, and are required to attend anywhere at any time to pick up fares. Therefore, they are easy prey.

18. Judge Galluci said this about the victims [25]:

    The victims have been haunted by their experience. They are generally scared. They have lost trust in people. One of the victims, [redacted], describes the circumstances of being like a nightmare. [The victim] has not even told his children that this event occurred to him. He is worried about the same thing happening again. It is easy to understand the fear, trepidation and indeed fear for their lives these innocent people going about their business and being confronted by people like you, drug affected and in possession of knives.

19. According to Judge Galluci, Mr Campbell refused to provide the police with details of his co-offenders involved in the armed robberies.

20. The sentence imposed for criminal offending is also an indicator of the seriousness of that offending (Ministerial Direction paragraph 9.1.1(e)). Mr Campbell was sentenced to 2 ½ years (30 months) imprisonment on each of the six charges of armed robbery. For the purposes of the Ministerial Direction, that amounts to a 15 year sentence even though 26 months of charges 2 – 6 were to be served concurrently. Plainly, the Judge regarded the offending as very serious.

21. In addition to the above, Mr Campbell was convicted in the Magistrates Court for his the less serious offences. This resulted in a further sentence of two years.

22. Given the above evidence, including the effect his offending had on innocent victims going about their ordinary business, I find Mr Campbell’s criminal offending was very serious.

    Risk to the Australian community should Mr Campbell re-offend

23. The evidence discloses that Mr Campbell does not hold the law in high regard. His first offending, which was dealt with by the Childrens’ Court in October 2008, resulted in him being released on a good behaviour bond. In less than 12 months, he had breached that bond. The offences committed in 2010, when no conviction was recorded, also required Mr Campbell to be of good behaviour during the period of the good behaviour bond. Nevertheless, within 12 months, he was convicted of the six armed robbery offences.

24. Mr Campbell received a letter from the Department of Immigration and Citizenship on 23 February 2013 warning him that if he committed further offences or otherwise breached the character test, that would weigh heavily against him as far as his visa was concerned. Mr Campbell signed a receipt acknowledging that he had received the warning and that he could be considered for refusal or visa cancellation in the future.

25. Mr Campbell was first granted parole on 15 May 2013 following his conviction for armed robbery. However that parole was cancelled on 21 January 2014, presumably for breach of a condition.

26. On 28 October 2015 Mr Campbell was again granted parole. However that parole was also cancelled on 18 November 2015 and he was required to serve a further 187 days in prison.

27. Despite that conduct, on completing a form provided by the Department of Immigration and Border Protection for the purpose of making submissions regarding the Department’s intention to consider cancelling his visa, having indicated that he had previously received a warning about his visa should he reoffend, when asked why he reoffended following that warning, Mr Campbell said:

    I breached parole for a non-compliance. But I did not commit any other offences whilst on parole.…

28. In answer to the question asking whether he was likely to re-offend, Mr Campbell responded:

    No I am not going to re-offend. Instead I am committed to turning my life around…

29. In his evidence in chief Mr Campbell said that he had been released from prison on two occasions and that he had done fine. He said he was no harm to the community in the year that he was on parole. When asked in cross-examination about the two breaches of parole which caused him to be returned to prison, Mr Campbell said it was a struggle being back out in the community as he had to rely on his family for money. Although he was looking for a job he was unable to secure employment and he was not entitled to any Social Security payments.

30. Mr Campbell said he was out one evening with friends and he used methylamphetamine (colloquially referred to as ice). He said that he caught a lift with his friends but then a couple of weeks later the police arrested him for stealing the car. He suggested that because his fingerprints were found on the car, he was found guilty. With respect to Mr Campbell, that does not explain the second offence which is described as: Go equipped to steal/cheat. There must have been some basis for bringing this charge and, in any event, he was found guilty of the offence. When asked who those friends were he was out with on that evening, Mr Campbell said some of them were persons who he came to know while in prison.

31. Furthermore, Mr Campbell said in his evidence in chief that he was on a methadone program and had been so for two years. In fact Mr Campbell said he was still taking methadone. Methadone is drug prescribed for the purpose of detoxification and maintenance treatment of opioid dependence. One of its adverse effects is that the user of methadone can also develop dependence on that drug (MIMS Australia). In other words, Mr Campbell cannot be described as being drug-free at this time.

32. Judge Galluci in his sentencing remarks said that Mr Campbell had a reasonably good prospect of rehabilitation if he remained drug-free and found employment. As the evidence before me indicates, Mr Campbell is not drug-free and his prospects of employment are not good.

33. I had in evidence a statement made by Mrs Meagan Simons who is Mr Campbell’s mother. That letter is undated and was lodged with the Tribunal on 28 February 2017. Mrs Simons explained that Mr Campbell dropped out of school in year 11, obtaining work apparently through his stepfather. As a teenager he apparently rejected the restrictions placed on him by his parents, instead associating with persons who had a negative influence on him. He then became addicted to methylamphetamine. Understandably, she is firmly of the few that the chance of Mr Campbell reoffending if he remains in Australia is very small indeed.

34. In a letter dated 21 November 2016 to the Tribunal, Mr Campbell attempted to explain why he found himself in the situation he was in and why he was not at risk of reoffending. He referred to completing his prison time with a clean record and the fact that he took part in many courses or programs offered to assist him in rehabilitating himself. He completed programs dealing with alcohol and other drugs, anger management, a violence intervention program and a semi-intensive drug treatment program.  Mr Campbell referred to support which would be given to him by his mother, Mrs Simons and support from his fiancée.

35. There is significant difficulty with what Mr Campbell has set out in his statement of 21 November 2016. If his offending and in particular violent offending was due to the company he was then keeping and to the fact that he was using methylamphetamine, despite having undergone the programs I have referred to above, and the support he claims from his family, when released on parole on two occasions, he returned to offending and his association with his so-called friends who were convicted criminals. In addition, despite being warned about the possibility of cancellation of his visa should his conduct continue, Mr Campbell, for reasons which are not clear, simply ignored that warning. It is seriously inadequate for Mr Campbell to blame the persons who he befriended and his use of methylamphetamine on his criminal conduct, when those were decisions he made for himself. He chose his friends and he chose to take drugs. He must have been aware of the consequences particularly in relation to his visa should that activity continue. Even when released on parole, he repeated the same bad choices despite knowing he must have been under close scrutiny.

1. Furthermore, the six counts of armed robbery of which he was convicted are clearly violent offences which are regarded as very serious. In fact not only does the Ministerial Direction make it clear that the Australian community has a low tolerance of that kind of conduct, the problem is that any risk of Mr Campbell reoffending must be unacceptable. Reviewing his conduct in its totality, I find that the risk of Mr Campbell reoffending should he remain in Australia is significantly high.

   Best interest of minor children

2. There was no evidence before me that any minor children would be affected by cancellation of Mr Campbell’s visa.

   Expectations of the Australian community

3. Paragraph 13.3 of the Ministerial Direction states:

   (1)  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 not to revoke the mandatory visa cancellation of such 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.

4. I should also refer to the Principles set out at paragraph 6.3 of the Ministerial Direction. The following are relevant in this case:

   (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 and 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.

5. There can be no question that the armed robberies committed by Mr Campbell were of a very serious nature. They were violent and committed against members of the Australian public who, while perhaps not strictly regarded as vulnerable, were more exposed to this type of conduct then many others. Furthermore, the taxi drivers involved were simply going about their lawful business and I have no doubt that the Australian community would find that they should be protected from persons such as Mr Campbell who has preyed on their vulnerability.

6. There is also evidence that the victims have been seriously traumatised by Mr Campbell’s criminal offending. Furthermore, I have no doubt that all of those persons engaged as taxi drivers would be aware of Mr Campbell’s offending and, reasonably, would be seriously concerned if he were to remain in Australia.

7. The work history given by Mr Campbell indicates he was employed, on essentially a full-time basis in various roles, between 2006 and 2010. In those work roles, Mr Campbell was an employee and I expect that he paid income tax. I accept that he has made some contribution to the Australian community during this time. Mr Campbell also said that he did some volunteer activities or participation in the community by way of picking up rubbish and cleaning up graffiti at the Salvation Army. However Mr Campbell did not say whether this was voluntary work. In any event, Mr Campbell commenced offending probably as early as 2008 given that he was found guilty of an offence on 20 October 2008 although without a conviction being recorded. I find there has been little or no serious contribution to the Australian community since Mr Campbell arrived in Australia on a permanent basis.

8. Although there was some dispute about the accuracy of the movement records provided by the Department of Immigration and Border Protection, I have no reason to doubt their accuracy. They disclose Mr Campbell first came to Australia in December 2001 but departed on 5 January 2002. He came back to Australia on 14 September 2003, remaining for only just over one week before again departing Australia. He then came back to Australia on 7 May 2005, remaining for three years and three months before departing Australia. He returned to Australia on 11 August 2008 and has remained in Australia since that date. Although the Minister understood his record to mean that Mr Campbell only commenced residing in Australia on a permanent basis on 11 August 2008, with respect, given that he was away from Australia for just over one week between 2 August 2008 and 11 August 2008, his time residing in Australia on a permanent basis should probably commence on 7 May 2005. Because Mr Campbell commenced offending in 2008, his contribution to the Australian community, at best, must be described as minimal.

9. Given the ongoing nature and seriousness of Mr Campbell’s criminal offending, I find the Australian community would not expect Mr Campbell to be allowed to remain in Australia.

   OTHER CONSIDERATIONS

10. The other considerations relevant to Mr Campbell’s case which are set out at paragraph 14 (1) of the Ministerial Direction are:

    ·     international non-refoulement obligations

    ·     strength, nature and duration of ties to Australia

    ·     extent of impediments if returned to New Zealand

    Non-refoulement obligations

11. As Mr Campbell is a citizen of New Zealand, there are no non-refoulement obligations which must be observed. If returned to New Zealand, Mr Campbell would not be subjected to cruel or unusual punishments.

    Strength, nature and duration of ties to Australia

12. The relevant considerations of those set out at paragraph 14.2 of the Ministerial Direction. It states:

    (1)  The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

    (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.

    (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).

13. As I have already indicated above, Mr Campbell commenced residing on a permanent basis in Australia on 7 May 2005. At that time he was 13 years of age. While he was not a young child when he arrived, he was in his early development stage as a teenager. Although there was no evidence that Mr Campbell commenced criminal offending while attending school, that offending commenced shortly after leaving school at about 16 years of age. Furthermore, there was no evidence before me of Mr Campbell having made any significant contribution to the Australian community.

14. Mr Campbell has claimed strong ties to his immediate and extended family in Australia. In his letter to the Tribunal of 21 November 2016, Mr Campbell said he was suffering because of separation from his family for almost 5 years. I take that as meaning separation due to his imprisonment for that time. In particular, Mr Campbell found separation from his fiancée to be a significant hardship. Upon release, Mr Campbell expected to be able to live with his fiancée and her grandmother and he stated that he would like the chance to rekindle all relationships with my immediate family especially my mum, stepdad and siblings, ….

15. I had in evidence a letter from Ms Lichoudaris, Mr Campbell’s fiancée, dated 24 September 2016. Ms Lichoudaris said she met Mr Campbell late in 2015 and that they had been living together at her grandmother’s residence for almost one year at that time. She said that Mr Campbell was of significant assistance to her grandmother, who was over 70 years of age. Ms Lichoudaris also explained that she had medical issues and was awaiting surgery. She said she had become dependent on Mr Campbell.

16. I also had in evidence a letter from Mr Campbell’s youngest sister, Ms Santana Campbell. Ms Campbell admitted that when her brother began mixing with the wrong crowd, they started to grow apart and things started to go downhill for him, and any relationships he had between him and our family. I understand that to mean that the remainder of Mr Campbell’s immediate family distanced itself from Mr Campbell when his criminal offending began. Ms Campbell also said that while she hoped her relationship with her brother would recover, she admitted that it was not back to where it had been previously. Nevertheless, she was strongly supportive of him remaining in Australia.

17. Mrs Cunnington, Ms Lichoudaris’ grandmother, provided a letter dated 25 September 2016 in support of Mr Campbell’s application to the Tribunal. She described Mr Campbell as being respectful towards her and assisting with jobs required to be done around her property.

18. Finally, I had a letter of support from a Mr Mohamad, who said he had known Mr Campbell for about 10 months. He admitted he did not know the nature of Mr Campbell’s criminal offending. For that reason, I can give it a little weight.

19. The evidence of the relationship between Mr Campbell and his family discloses that when he commenced his criminal offending, that relationship became very strained. Even though Mr Campbell spent some time on parole, the family relationship does not appear to have been significantly repaired. However, his relationship with Ms Lichoudaris does appear to be strong. Mr Campbell, by his criminal offending, has placed that relationship in a very precarious position. In fact, as I understand the evidence, he was living with Ms Lichoudaris at the time he breached his parole by being involved in the theft of a motor vehicle and using drugs. While it is not immediately clear as to what influence Ms Lichoudaris may have on Mr Campbell’s future conduct, it is reasonable to find that it is likely to be positive.

    Extent of impediments if returned to New Zealand

20. Mr Campbell has spent most of his childhood in New Zealand. If he were returned to that country, there would be no cultural or language barriers. Although I had no evidence about economic barriers which might exist in the way of employment opportunities, I would expect it to be little different to that in Australia at the present time. I expect that New Zealand has comparable healthcare, education and social welfare support to that available in Australia.

21. The only matter raised by Mr Campbell was that he believed there were a lot of gangsters in his old home town and he did not want to be around them. The problem with that claim is that the situation is no different to that in Australia. In fact, even while out on parole, Mr Campbell associated with persons whom he knew from prison. In fact, it appears Mr Campbell blamed them for the theft of the car and the fact that he tested positive to an illicit drug (methylamphetamine) following that incident. It should be apparent to Mr Campbell that he has a choice regarding the persons with whom he associates. That may be in New Zealand or in Australia. Mr Campbell said that he had no family members who could support him in New Zealand as all of this immediate family now resided in Australia. While I accept that family support may play a role in assisting Mr Campbell in re-establishing his life after prison, that is not necessarily always the case. In fact Mr Campbell had significant family support while in Australia but nevertheless committed the serious offences for which he was imprisoned.

22. I find there are no significant impairments should Mr Campbell be returned to New Zealand.

    CONCLUSIONS

23. Only two primary considerations are relevant in Mr Campbell’s case. They are the protection of the Australian community and the expectations of the Australian community. I have found that Mr Campbell’s criminal offending was very serious. As for the risk imposed by Mr Campbell should he reoffend, I have found that his risk of reoffending is significantly high, particularly having regard to the fact that Mr Campbell received a very early warning that his criminal offending, if it continued, may result in cancellation of his visa. Despite that, he continued to offend and, in fact, the seriousness of his offending escalated. Furthermore, although Mr Campbell was released on parole on two occasions, he breached the conditions of that parole and was returned to prison. On the second occasion, he was also convicted of further criminal conduct.

24. Given the seriousness of Mr Campbell’s criminal offences and the fact that they were committed on persons who, through the necessity of their work, were vulnerable, I have found that the Australian community would not expect Mr Campbell to be allowed to remain in Australia.

25. It follows that the primary considerations weigh strongly against revocation of the mandatory decision to cancel Mr Campbell’s visa.

26. As for the other considerations, which generally should be given less weight, I have found that his relationship with Ms Lichoudaris is likely to have a positive effect on him although that relationship has not been tested to any extent given that Mr Campbell has been incarcerated for most of the time since he formed that relationship. As for the remainder of Mr Campbell’s family in Australia, there was no evidence before me to make a finding that their influence on him if he were to remain in Australia would be significant.

27. I have found that there are no significant impediments to which Mr Campbell would be exposed if he were returned to New Zealand.

28. In this particular case, I find it is necessary to give significant weight to the primary considerations because of the nature of Mr Campbell’s criminal conduct, and the fact that his future conduct will be dependent upon him remaining drug-free. At present, his risk of reoffending remains significant. While the strength, nature and duration of his ties to Australia, particularly to his fiancée, weigh in his favour, they do not displace the weight which must necessarily be given to the primary considerations in this case.

29. I find that the decision made by a delegate of the Minister on 14 November 2016 not to revoke the original decision to cancel his Class TY Subclass Special Category (Temporary) visa was the preferable decision. I affirm that decision.

65.     I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member

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Associate

Date of hearing:	29 March 2017
Solicitors for the Applicant:	Self- represented
Advocate for the Respondent:	Mr Adam Cunynghame
Solicitors for the Respondent:	Sparke Helmore Lawyers