CZQL and Minister for Immigration and Border Protection (Migration)

CZQL and Minister for Immigration and Border Protection (Migration) [2017] AATA 2715 (19 December 2017)
Division:GENERAL DIVISION
File Number(s): 2017/6141
Re:CZQL
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

Decision
Tribunal:Deputy President J W Constance
Date:19 December 2017
Place:Sydney

The reviewable decision made 9 October 2017, being the decision of the delegate of the Minister for Immigration and Border Protection not to revoke the cancellation of the Applicant’s spouse visa, is affirmed.
..................................[sgd]......................................
J W Constance
Deputy President
Catchwords
MIGRATION – visa – non-revocation of cancellation – substantial criminal record – driving offences – causing harm to a Commonwealth public official – armed robbery – protection of the Australian community – numerous and serious offences – risk of re-offending – best interests of minor children in Australia – five minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – impact on family in Australia – decision affirmed
Legislation
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
Cases
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Secondary Materials
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Deputy President J W Constance
19 December 2017
part A: inTRODUCTION

The Applicant is a citizen of Fiji. He was 12 years old in 1999 when he first entered Australia. He has resided here continuously since. Prior to 21 September 2016 he held a Class AS Subclass 801 Spouse visa.
On 2 December 2015 the Applicant was sentenced to 18 months in prison for the offence of driving whilst disqualified.
On 21 September 2016 a delegate of the Minister for Immigration and Border Protection cancelled the Applicant’s visa (“the cancellation decision”).[1] The delegate was satisfied the Applicant was serving a term of imprisonment on a full-time basis in a custodial institution and therefore did not pass the character test set out in the Migration Act 1958 (Cth).[2]
[1] Exhibit R1 p.42.
[2] The cancellation was mandatory in accordance with the provisions of subsection 501(3A) of the Act.
At the time of the hearing of this application the Applicant was still in prison. In November 2017 he was sentenced to a term of imprisonment in relation to other offences. I will refer to these offences later in these reasons.
In accordance with the procedure set out in the Act, the Applicant made representations to the Minister seeking a revocation of the cancellation decision. On 9 October 2017 another delegate of the Minister decided not to revoke the cancellation decision.[3] This decision, referred to as “the reviewable decision”, is the subject of this application for review.
[3] Exhibit R1 p.8.
For the reasons which follow the reviewable decision will be affirmed. This means that the Applicant’s visa remains cancelled.
PART B: BACKGROUND
Unless otherwise stated the following findings of fact are based on the evidence of the Applicant.
The Applicant was born in 1986 and is now 31 years old. His childhood in Fiji was traumatic until he joined his mother in Australia in 1999.
The Applicant’s criminal record
A National Police Certificate issued in respect of the Applicant[4] shows that he has been convicted of numerous offences in Australia. They include:
·driving whilst disqualified from holding a licence;
·driving with excess of the prescribed concentration of alcohol;
·causing harm to a Commonwealth public official (law enforcement);
·robbery armed with an offensive weapon.
[4] Exhibit R1 pp.21-30.
A partially redacted copy of the National Police Certificate issued in respect to the Applicant on 4 October 2016 is annexed to these reasons.[5]
[5] Exhibit R1 pp.21-30.
Offences relating to the use of a motor vehicle
The Applicant first appeared in a court in relation to driving a motor vehicle without a licence in January 2001. At the time he was 14 years old. Since then he has been convicted of more than 50 offences relating to the use of a motor vehicle. He has never held a drivers licence and is currently disqualified from doing so until 2036.
In February 2014 when delivering the Court’s judgment on an appeal by the Applicant against a sentence of imprisonment for driving whilst disqualified, the Chief Justice of the District Court of New South Wales said, in part:
…… looked at in terms of his driving history and the way he has been dealt with, although courts are very reluctant to send people to gaol for driving whilst disqualified, in his case he has shown himself to be a danger on the road because his history is not only for driving while disqualified but also driving while affected by intoxicating liquor. Now that is not part of this offence but it is something to be taken into account that that has been his history and in a case such as this it is not simply a matter of imposing a sentence because he refuses to obey court orders. There is a public safety aspect to the offence.[6] [Emphasis added].
[6] ExhibitR1 pp. 35-36.
On 2 December 2015 the Applicant was sentenced in the Local Court of New South Wales for three offences of driving whilst disqualified, one of speeding and one of driving an unregistered/uninsured vehicle. These were the Applicant’s fifth, sixth and seventh convictions for driving while disqualified. He was sentenced to a term of imprisonment of 18 months to date from 2 October 2015 and expire on 1 April 2017. He became eligible for parole on 1 October 2016. He was disqualified from driving on the basis that he was an habitual offender.
In imposing the sentence His Honour said, in part:
You have got a history of driving which is a total abrogation of your responsibilities. I think you have got five or six drink/driving matters, you have never had a licence, you have got multiple drive whilst disqualified matters. The last couple of times you have received custodial sentences for that very thing and you continue to drive, and you continue to drive in a situation where you have never held a licence and where you put other road users at risk, including, on at least one occasion, one of your children. You persist in driving, notwithstanding the fact that you know that each of these matters is a matter for which you could go to gaol. So you drove on 24 July, 24 August and 29 September. I daresay they are the only times you were actually detected. You have well and truly crossed the threshold. You do not have any options left, apart from gaol.[7]
[7] Exhibit R1 p.33.
Offences involving violence
The Applicant has been dealt with in the Children’s Court in relation to the following:
·2001 – two counts of robbery in company;
·2002 – two counts of armed robbery and one count of robbery in company;
·2003 – two counts of armed robbery and one count of robbery in company;
·2004 – aggravated robbery, armed robbery and two counts of robbery in company.
In 2011, as an adult, the Applicant was convicted of the offences of causing harm to a Commonwealth judicial/law officer, two counts of obstruct/hinder/intimidate/resist Commonwealth official, threatening to cause harm to a Commonwealth public official, and causing harm to a Commonwealth public official. He was sentenced to a term of imprisonment of seven months and released on entering a recognisance to be of good behaviour for seven months.
On 20 June 2017 the Applicant pleaded guilty to charges of robbery in company and two counts of robbery armed with an offensive weapon. In November 2017 he was sentenced to a term of imprisonment of five years and five months commencing on 1 January 2019 and ending on 31 May 2024. The Applicant will not be eligible for parole until 30 June 2021.
The Applicant’s family
The Applicant has been in a relationship with his partner, Ms A, since January 2007. They have five children, sons aged ten years and four years and daughters aged seven years, six years, and two years, respectively.
In 2013 Ms A was imprisoned for a period of six months in relation to a drug offence. During that time the Applicant cared for the children.
In October 2015 the children were removed from the care of the Applicant and Ms A in accordance with an order of the Children’s Court. This occurred by reason of the New South Wales Department of Family and Community Services becoming aware of the Applicant’s criminal activity, drug use by the Applicant and Ms A, the presence of drug paraphernalia in the home in which the children were living and the physical neglect of the home.[8]
[8] Evidence of Ms Loong 11 December 2017.
The children were returned to the care of Ms A in July 2016 and have remained in her care since. They have not been returned to the care of the Applicant as he has been in prison since the time the children returned home. The Applicant will have to apply to the Children’s Court for orders returning the children to his care.
The Applicant’s mother and step-father live in Australia. His mother is in poor health. His father died when the Applicant was six years old. The Applicant has a sister who lives in New Zealand and a brother living in Fiji.
Failure to pass the character test
It is not in dispute that, by reason of his criminal record, the Applicant does not pass the “character test” set out in the Migration Act.
part C: The relevant legislation
Subsection 501(3A) of the Migration Act 1958 (Cth) provides:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
This mandatory cancellation decision is referred to later in the Act as “the original decision”.
Subsection 501CA(3) provides:
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The power of the Tribunal to review the decision to cancel the Applicant’s visa is provided by section 500.
PART D: direction No.65
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 which commenced on 23 December 2014.
Subparagraph 6.1(3) of the Direction provides, in part:
Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 provides general guidance and directs that “factors that must be considered in making a revocation decision are identified in Part C of this Direction.”
Under the heading General Guidance subparagraph (1) provides:
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.
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 the mandatory cancellation of the Applicant’s visa will be revoked.
In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion to revoke the cancellation of a visa is to be approached. The principles include the following:
(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 that non-citizen’s visa should be cancelled, or their visa application refused.
The Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case.[9] Primary considerations should generally be given greater weight than the other considerations.[10]
[9] Direction 65, paragraphs 6.2(3) and 8(1).
[10] Direction 65, paragraph 8(4).
Paragraph 13(2) provides:
In deciding whether to revoke a 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.
Paragraph 14(1) sets out other considerations to be taken into account where relevant. It provides:
In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
part E: the issue for determination
I have set out subsection 501CA(4) of the Act earlier in these reasons. Before the power to revoke the original decision is enlivened, it is necessary for the decision-maker to be satisfied that the conditions for the exercise of the power have been met.
It is not in dispute that the Applicant has made the representation referred to in paragraph (a) of subsection 501CA(4). It is also not in dispute that he does not pass the character test in subparagraph (b)(i) of the subsection. It is therefore necessary to decide whether “there is another reason [i.e. other than an applicant passing the character test] why the original decision should be revoked.”[11]
[11] Subparagraph 501CA(4)(b)(ii).
If I am satisfied of all the relevant requirements of subsection 501CA(4)(b) then the cancellation must be revoked. To this extent “may” in the subsection means “must”.[12]
[12] Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at para.31.
part f: REASONING
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
I must have regard to matters set out in paragraph 13.1 being:
·…… the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
·the nature and seriousness of the person’s conduct to date;
·the risk to the Australian community should the person commit further offences or engage in other serious conduct.[13]
[13] ‘Serious conduct’ is defined in Annex B to the Direction to include conduct of concern which may not constitute a criminal offence.
The nature and seriousness of the Applicant’s conduct to date
The Applicant’s conduct to date, involving as it does violent offending, drug use and numerous serious driving offences, must be regarded as extremely serious. I agree with Counsel for the Minister’s description of the Applicant’s driving record as “appalling”.[14] His use of a motor vehicle has endangered not only members of the general public but also his own children.
[14] Statement of Facts, Issues and Contentions of the Respondent 23 November 2017 para.36.
The Applicant’s conduct has been made even more serious by his repeated disregard for the law and the seeming ineffectiveness of custodial sentences.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Direction states that I “should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.” [15]
[15] Paragraph 13.1.2(1).
There are also considerations to which regard must be had cumulatively:
(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 non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).[16]
[16] Paragraph 13.1.2(2).
The nature of future harm

In view of the seriousness of the Applicant’s conduct and in line with the principle stated above, the Australian community’s tolerance for the risk of any harm which may come of future misconduct by the Applicant would be low. Should the Applicant engage in such conduct there would be a significant risk of physical harm to members of the community (including the Applicant’s own family) by reason of his driving. In addition, there would be a risk of injury and loss of property arising from offences such as robbery. Offences involving loss of property and the risk of physical harm would cause uncertainty and concern in the community in which such offences were committed.
The likelihood of the Applicant engaging in further criminal or other serious conduct
The Applicant’s evidence
I take into account the Applicant’s evidence in this regard. He says that he recognises the seriousness of his conduct and takes responsibility for it. He is remorseful of his past conduct. He asks that he be given “one last chance”.
The Applicant says that he has learned from the traffic offenders program in which he has taken part and has gained skills from a weed-spraying course he has undertaken in prison. He hopes to be able to set up his own lawn-mowing and landscaping business if he is free to do so upon his release.
On a number of occasions the Applicant referred to his traumatic childhood in Fiji and the lack of guidance when he arrived in Australia as a 12-year-old boy. He says that he fell in with the “wrong crowd” and did not appreciate the seriousness of his conduct. He says that he will never again drive a motor vehicle without a licence.
I am satisfied that the Applicant is committed to his relationship with Ms A and to his children. Further, I am satisfied that notwithstanding his actions since his eldest child was born, he is genuine in his desire to care for his family and to avoid further misconduct. He has learned to seek help from others to address issues as they arise. Previously, he was unable to do this.
Rehabilitation Programs
Unfortunately, the Applicant has had very little opportunity to undertake courses to assist him in his rehabilitation whilst in prison. During some of that time he has been on remand and was therefore ineligible to enrol in courses related to matters such as drugs and alcohol abuse. However, there is evidence (to which I shall refer later) that the Department of Family and Community Services would support the Applicant in being offered such courses towards the end of his prison term but prior to his release.
Warnings as to possible visa cancellation
The Applicant was officially warned by letters of 12 February 2008 and 27 November 2014 from the Department that further convictions may result in cancellation of his visa.[17]
[17] Exhibit R1 pp. 84-86.
Consideration
Taking all the above factors into account, I have reached the conclusion that there is a significant risk that the Applicant will re-offend despite his best intentions. He has shown a propensity to continue to engage in serious misconduct regardless of his family responsibilities, the imposition of custodial sentences, warnings by the Courts and the possibility of his visa being cancelled. In addition, he has been offered minimal assistance in his rehabilitation whilst in the prison system.
In these circumstances I am satisfied that the need to protect the Australian community from the serious effects of misconduct such as that in which the Applicant has engaged, weighs very heavily in favour of not revoking the cancellation of his visa.
Primary Consideration 2: Best interests of minor children in Australia affected by the decision
The Minister concedes that the best interests of the Applicant’s five young children is a factor which weighs in favour of revoking the cancellation decision. I agree.
The evidence of Ms A
Ms A provided two statements[18] and gave evidence.
[18] Exhibit R1 p.73-75 and exhibit A1.
I accept Ms A’s evidence that she and the Applicant have been in a committed relationship for almost 11 years and that they have provided support for each other, especially through difficult times. Understandably, Ms A finds it very difficult to care for five young children without the assistance of their father. She has no other family members who are able to assist on a day-to-day basis.
The family’s circumstances have improved considerably since the Applicant was taken into custody. At that time the family was living in inadequate accommodation in a difficult environment. Ms A and the children now live in a five bedroom home in a family neighbourhood. She has been free of illicit drug use for the past two years. The children are in school and childcare and their attendance is excellent. Ms A has access to support through the Department of Family and Community Services.
Since the Applicant was transferred to a prison in the Sydney metropolitan area in April 2017, Ms A has taken the children to visit the Applicant on a regular basis. I accept her evidence that the children have a good relationship with their father and wish to have him living at home with them.
The evidence of Ms O’Brien, Family Worker
Ms O’Brien provided two reports dated 19 December 2016 and 18 October 2017 respectively[19] and gave evidence.
[19] Exhibits R1 p.66 and A3.
Ms O’Brien is a Family Worker employed by Uniting Newpin Doonside, which assists in the restoration of families following the separation of children from their parents. Newpin works in partnership with the Department of Family and Community Services, providing therapeutic and educative programs.
Ms A was referred to Newpin in late 2015 to support her during the return of the children to her care. As part of this process Ms A and the children took part in a program two days per week for 18 months, commencing on 13 January 2016.
Ms O’Brien reported that Ms A was totally engaged with the program from the very beginning and completed every parenting course offered to her. Although Ms O’Brien did not have direct contact with the Applicant, she was present with the children during telephone contact with him when they attended Newpin. She is of the opinion that despite the Applicant’s past conduct and his physical separation from the children, there is still a “secure attachment” between them and that “without doubt” it is in the best interests of the children that they remain in close contact with their father. She said that it would be damaging to the children if the Applicant was removed from Australia.
In her report of 19 December 2016 Ms O’Brien said that as of 2 July 2016 all five children had moved back into the care of Ms A who continued “to work hard to ensure a secure and safe future for her children”.[20]
[20] R1 p.66.
On 18 October 2017 Ms O’Brien reported, in part:
I am very concerned that, after the recent decision [the Applicant’s] visa remains cancelled. The restoration of the five children to [Ms A’s] care has been successful and was supported by the NSW Department of Community Services. The final decision for restoration was made by the Parramatta Children’s Court on 11^th March 2016. I am worried that the ongoing success of the restorations may now be put at risk.
It has been the understanding of Newpin that upon release [the Applicant] would begin to undertake anything required in order for him to resume his role as active father of the children. Community Services noted in the children’s Care Plans that [the Applicant] is clear in his intention, upon release, to undertake all necessary tasks to address concerns that had earlier led to the children entering care. [The Applicant’s] resolution is that at the right time he will live with [Ms A] and their children and resume his role as co-parent.
[Ms A] has likewise been consistent over the past 20 months in her intention for their relationship to continue. She has not wavered from her expectation that on release he will take all necessary steps to address concerns so he can then reside again in the family home and they can raise their children together.
The children have a strong bond with their father and are able to speak by phone with him regularly, often daily. They also have regular positive contact visits with him, at this stage minimum 12 times a year. The relationship with him is a strong protective factor, and the older three children have consistently expressed in words and behaviour their desire to be with him and their pain in being separated.
[Ms A] has been able to set her family on a path to a strong future, through her own hard work, and the support of FACS and Newpin. However she is sustaining this level of hard work as a single parent of five children with a realistic expectation (until now) that at some time [the Applicant] will co-parent the children again.[21]
[21] ExhibitA3.
Ms A has now completed the program offered by Newpin but is still able to contact Ms O’Brien for assistance should she wish.
Evidence of Ms Loong, Case Worker
Ms Loong is a caseworker employed by the Department of Family and Community Services. She was the Case Worker assigned to Ms A and the children from October 2015 until March 2017. Ms Loong was the author of a report dated 17 January 2017[22] (although not signed by her) and gave evidence.
[22] Exhibit R1 p.69.
Ms Loong gave evidence that the Department favours the Applicant remaining in Australia so that his ability to be a parent can be assessed. However, before that could take place the Department will require that he undertake rehabilitation courses, including in relation to drug and alcohol use.
Primary Consideration 3: Expectations of the Australian community
Clause 13.3 of the Direction provides:
(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 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.
It is very difficult to assess the expectations of the community in an application such as this. I have no doubt that there will be strongly differing views as to whether the Applicant should be permitted to remain in Australia. However, having regard to the seriousness and repetition of his offending and the risk that he will continue to offend, I am of the view that the Australian community would expect that the Applicant not be permitted to remain in Australia. In accordance with the Direction I have taken into account the view of the Government as expressed by the Minister.
This conclusion is consistent with the provisions of clause 13.3 of the Direction. The Applicant has repeatedly failed to abide by Australian laws over many years. He has breached the trust which was placed in him when he was granted the visa which permitted him to reside in this country.
Other considerations set out in Direction No.65
Clause 14 provides:
(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
International non-refoulement obligations
Australia does not have any non-refoulement obligations relevant to this application.
Strength, nature and duration of ties to Australia
Clause 14.2 provides:
(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).
The Applicant has lived in Australia since he was 12 years old. Although he arrived as a relatively young child, the significance of this factor is reduced by the fact that he started offending within two years of his arrival.
The Applicant has worked as a part-time labourer and in a goods dispatch warehouse and in that time did make a positive contribution to the Australian community by way of the services he provided and the tax he paid on his income. On the other hand, he has been a drain on the country’s resources during the time he has been held in prison.
There is no doubt that should the Applicant be required to leave Australia it will have serious consequences for Ms A who is an Australian citizen. I am satisfied that she and the Applicant are in a committed relationship which has endured the incarceration of each party at various times. In addition to the emotional hardship which would be caused to Ms A she would also be denied the benefit of the Applicant co-parenting the children should he be free to do so.
I am satisfied that the Applicant’s mother is an Australian citizen and that she is unwell. I accept her evidence that it is her wish that the Applicant be given another chance and that he be allowed to remain in Australia.[23] By reason of his incarceration the Applicant has been unable to provide practical assistance to his mother.
[23] Statement by the Applicant’s mother made 24 January 2017; exhibit R1 p.76.
The Applicant’s step-father provided a statement that if the Applicant is required to leave Australia it will cause distress to the Applicant’s mother.[24]
[24] Exhibit R1 p.77.
Apart from the effect on Ms A, on the evidence available I do not consider that the strength, nature and duration of the Applicant’s ties to Australia are such as to weigh significantly in favour of the revocation of the cancellation of his visa.
Impact on Australian business interests
I am satisfied that a decision not to revoke the cancellation of the Applicant's visa will not have a relevant impact on Australian business interests.
Impact on victims
I do not have sufficient evidence to assess the impact of the Applicant’s behaviour on the victims of his criminal conduct, other than it is likely that the victims of his robberies suffered distress and financial loss.
Extent of impediments the Applicant may face if he is removed from Australia
The Applicant says that should he return to Fiji he will have nowhere to live and no support. The Applicant has relatives in Fiji but he says that they are not in a position to assist him.
The Applicant has a brother who resides in Fiji, but the Applicant says that they do not have a close relationship and he would not wish to contact him. However the Applicant admitted that this reluctance was on his part rather than his brother’s.
Whilst the Applicant has limited skills to help him find employment, he is a citizen of Fiji and has some understanding of its culture. This would assist him in again becoming part of the Fijian community. English is an official language of Fiji and I am satisfied the Applicant will not have difficulty in communicating with others.
The Applicant does not have diagnosed medical conditions although he says he suffers from depression and post-traumatic stress disorder. I accept that he will be likely to suffer emotional distress if he is further separated from his family. Ms A did acknowledge the possibility that the whole family could relocate to Fiji, but understandably she was concerned as to the effect this would have on the children and, in particular, upon their education. The Applicant says that it would not be fair to Ms A and the children for him to expect that they leave Australia.
The Applicant’s experience in working in different industries should assist him to gain employment in Fiji. As he is a citizen of Fiji he will be entitled to the same level of government support as other citizens.
part g: THE BALANCING EXERCISE
The nature and seriousness of the Applicant’s conduct and the seriousness of the harm which would be caused to members of the community should the Applicant re-offend, are very significant factors weighing heavily against the revocation of the decision to cancel his visa.
The Applicant has done little to demonstrate that he is unlikely to re-offend and unfortunately, he has been offered little assistance in prison to assist him in rehabilitating himself. Had he had the opportunity to engage in counselling and training whilst imprisoned I could have sought the views of those involved in this process. This would have been of assistance.
On the other hand the interests of the Applicant’s five young children and Ms A weigh very heavily in favour of revoking the cancellation decision. Whilst the Applicant has shown little regard for their interests when engaging in his past criminal conduct I accept that he now genuinely wishes to return to being a full-time member of the family and that he understands that he needs support to achieve this. The Minister did not challenge his evidence in this regard.
Although it has been a very difficult decision to make I have come to the conclusion that the primary considerations favour the cancellation decision not being revoked. A decision to this effect would be consistent with the principles of General Guidance in the Direction that “[b]eing 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.” [25]
[25] Paragraph 6.3.
Turning to consider the other considerations, the effect of the Applicant being required to leave Australia on his immediate family, particularly Ms A., is a matter which weighs in favour of revoking the cancellation decision. There can be no doubt that the interests of Ms A and those of the children are inextricably linked.
I give little weight to the impediments the Applicant may face on his return to Fiji. Again the evidence as to the hardship he is likely to suffer in Fiji is very limited.
In view of the Applicant’s past conduct and the limited evidence that he is unlikely to re-offend, the risk to the community should he be allowed to remain in Australia is unacceptable.
Considering all of the evidence I am not satisfied that there is a reason why the original decision should be revoked.
part h: CONCLUSION
The reviewable decision made 9 October 2017, being the decision of the delegate of the Minister for Immigration and Border Protection not to revoke the cancellation of the Applicant’s spouse visa, will be affirmed.

I certify that the preceding 96 (ninety -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

.....................................[sgd]...................................
Associate
Dated: 19 December 2017

Date(s) of hearing: 11 December 2017

Applicant: In person

Solicitors for the Respondent: A Markus, Australian Government Solicitor

[2017] AATA 2715

19 December 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Date(s) of hearing:	11 December 2017
Applicant:	In person
Solicitors for the Respondent:	A Markus, Australian Government Solicitor