Davis and Minister for Immigration and Border Protection (Migration)

[2017] AATA 1106

Davis and Minister for Immigration and Border Protection (Migration) [2017] AATA 1106 (19 July 2017)

Division:GENERAL DIVISION

File Number:           2016/4909

Re:Anthony Davis

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member T. Tavoularis

Date:19 July 2017

Place:Brisbane

The decision under review is affirmed.

........................................................................

Senior Member T. Tavoularis

Catchwords

IMMIGRATION –  non-revocation of mandatory cancellation of visa – Applicant did not pass s 501 character test and was serving term of imprisonment – visa mandatorily cancelled under s 501(3A) – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – discretion should not be exercised to revoke visa cancellation – decision under review affirmed.

Legislation

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

Cases

Singh v Minister for Immigration and Border Protection [2014] AATA 37

Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301

Secondary Materials

Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (the “Direction”)

REASONS FOR DECISION

Senior Member T. Tavoularis

19 July 2017

INTRODUCTION

1. This matter relates to an application for review filed by Anthony Davis (“the Applicant”) on 12 September 2016. The decision under review is the decision of a delegate of the Minister for Immigration and Border Protection (“the Minister” or “the Respondent”) dated 17 August 2016. The delegate’s decision pursuant to section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) was to not revoke the mandatory cancellation[1] of the Applicant’s visa. 

   [1] Mandatory visa cancellation by virtue of section 501(3A) of the Migration Act 1958 (Cth).

2. The Tribunal has jurisdiction to review the decision of the delegate under section 500(1)(ba) of the Act.

   BACKGROUND

3. The Applicant is a citizen of New Zealand. He has been back and forth between Australia and New Zealand since he was 6 years old. He last re-entered Australia on 11 May 1998, holding a Class TY Subclass 444 Special Category (Temporary) visa (“the visa”), and has been here since.

4. The Applicant claims to have mostly resided in Australia since he was 6 years old with the exception of five occasions that he departed Australia and returned to visit New Zealand for periods ranging from 11 days to 6 weeks.[2]

   [2] See Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”) at [11].

5. This matter concerns the circumstances surrounding the mandatory cancellation of the Applicant’s visa and the refusal of the Minister to revoke that cancellation.

6. The Applicant has an extensive criminal history here in Australia, which is adequately summarised in the Facts table in the Respondent’s Statement of Facts, Issues and Contentions (“SFIC”).[3] He has been convicted of numerous offences for which he has been fined, warned, ordered to pay restitution, and sentenced to community service or probation orders or imprisonment. Most notably, the Applicant has been convicted and sentenced to terms of imprisonment for the following:

   [3] See Exhibit 2, Respondent's SFIC; and also Exhibit 3: T-documents, T2, pp 31-36 ‘National Police Clearance dated 24 November 2015’.

   ·29 October 2001 – Beenleigh Magistrates Court – offence of common assault – sentenced to 3 months imprisonment.

   ·17 January 2002 – Beenleigh District Court – offence of breach of probation order and breach of community service order – sentenced to 15 months imprisonment (suspended for 3 years after serving 3 months) for both offences.

   ·13 August 2008 – Caboolture Magistrates Court –  offence of enter premises with intent – sentenced to 2 months imprisonment;

   ·18 February 2011 – Beenleigh Drug Court – convicted and sentenced for the following offences:

   oPossessing dangerous drugs (9 counts) – 3 months imprisonment;

   oPossessing dangerous drugs (9 counts) - 3 months imprisonment (concurrent with above);

   oEnter premises and commit indictable offence by break (2 charges) – 4 years imprisonment;

   oStealing and possess tainted property – 6 months imprisonment;

   oFail to take reasonable care and precautions in respect of syringe or needle – 1 month imprisonment;

   oEnter premises and commit indictable offence (4 charges) – 2 years imprisonment; 

   oFraud – dishonestly gain benefit/advantage, and Enter premises and commit indictable offence – 1 year imprisonment.

   oAll of the above custodial terms were suspended. Instead the Court ordered the Applicant to complete 100 hours of community service, to pay restitution in the sum of $124,262.15; and to complete an Intensive Drug Rehabilitation Order.

   ·4 October 2011 – Beenleigh Magistrates Court – convicted of assault or obstruct a police officer - fined $600.

   ·20 July 2012 – Beenleigh Drug Court – Intensive Drug Rehabilitation Order is vacated and instead he was resentenced to concurrent sentences of:

   o3 years 9 months imprisonment for each offence of enter premises and commit break;

   o2 years imprisonment for each offence of enter premises and commit;

   o1 year imprisonment for each offence of fraud – dishonestly gain benefit / advantage;

   o6 months imprisonment for offence of stealing, possesses tainted property;

   o3 months imprisonment for each offence of possess dangerous drugs; and

   o1 month imprisonment for each offence of fail to take reasonable care/precautions in respect of needle/syringe. 

   ·29 July 2013 – Beenleigh Magistrates Court – offences of possessing dangerous drugs (and associated drug offences); unlawful use of motor vehicles and receiving tainted property – sentenced to concurrent terms of imprisonment of 6 months, 1 month, 12 months and 12 months, respectively. He was also disqualied from driving for 6 months.

   ·3 November 2014 – Brisbane District Court – offence of aggravated supply of second schedule drug in correctional institution – sentenced to 16 months imprisonment (cumulative upon his then current sentence).

7. The Applicant’s offending came to the attention of the Minister and on 19 June 2007 the Department of Immigration wrote to him warning about the consequences of further offending on his visa status.

8. The Applicant continued to commit offences even after receiving this warning. On 26 June 2013 the Department notified him of their intention to consider cancelling his visa under section 501(2) of the Act.

9. On 1 November 2013, the Applicant’s representative provided submissions in response to the notification of intention to cancel.

10. On 3 July 2015, the Minister’s delegate mandatorily cancelled the Applicant’s visa under section 501(3A) of the Act.

11. On 20 July 2015, the Applicant made representations to the Minister seeking revocation of the mandatory visa cancellation decision.

12. On 17 August 2016, the Minister’s delegate made the decision under review, not to revoke the mandatory cancellation of the Applicant’s visa. This was hand delivered to the Applicant on 18 August 2016.

13. On 12 September 2016 the Applicant applied to this Tribunal for review of that decision.

    ISSUES

14. The refusal to revoke the mandatory cancellation was made on two grounds. I must consider and address both of the following issues:

    (i)whether the Applicant passes the “Character Test” as defined in section 501(6) of the Act; and

    (ii)whether, there is another reason why the cancellation decision should be revoked, having regard to the considerations in Ministerial Direction No 65. (ie. should the discretion appearing in section 501CA(4) of the Act be exercised anyway?)

15. I am satisfied that the Applicant does not pass the character test in section 501(6) of the Act. I note that in written submissions and at the hearing, the Applicant did not dispute that he does not pass the character test.[4] It was accepted that the Applicant’s visa was correctly cancelled pursuant to section 501(3A) of the Act.

    [4] See Exhibit 1, Applicant’s SFIC at [15].

16. The only issue disputed at the hearing was whether there was another reason why the discretion in section 501CA(4) should be exercised to revoke the mandatory visa cancellation decision.

17. I consider that the Minister’s delegate correctly exercised the discretion in section 501CA(4) of the Act to not revoke the mandatory visa cancellation. My reasons now follow.

    ISSUE 1: CHARACTER TEST

18. It is immediately clear to me from the material filed in this matter that the Applicant does not pass the character test. For the sake of completeness, I will still address that issue.

19. At the hearing, I confirmed that the parties agree about the nature and extent of the Applicant’s offending. As mentioned in paragraph 6 above, the Applicant has an extensive history of offending which is adequately summarised in the Respondent’s SFIC and in the National Police Clearance. This is accompanied by an appropriately worded concession in the Applicant’s SFIC about his offences and that he does not satisfy the character test.[5]

    [5] See Exhibit 1, Applicant’s SFIC at [13] and [15].

20. Section 501(6) of the Act provides a number of circumstances in which someone will not pass the “character test”. Most relevant here is section 501(6)(a), under which a person does not pass the character test if they have a “substantial criminal record” as defined in section 501(7). In section 501(7)(c), a person has a “substantial criminal record” if they have been sentenced to a term of imprisonment of 12 months or more. The wording of that provision is clear: it relates to the sentence imposed by a Court, not the amount of time a person has actually served.

21. Having regard to his criminal history it is clear the Applicant has been sentenced to more than one term of imprisonment of 12 months or more. Notably, he was sentenced to:

    (i)15 months imprisonment on 17 January 2002 for the offences of breach of probation order and breach of community service order;

    (ii)3 years 9 months imprisonment on 20 July 2012 for each offence of enter premises and commit break;

    (iii)2 years imprisonment on 20 July 2012 for each offence of enter premises and commit;

    (iv)1 year imprisonment on 20 July 2012 for each offence of fraud – dishonestly gain benefit / advantage;

    (v)A total of 6 months, plus 1 month, plus two lots of 12 months imprisonment (concurrent) on 29 July 2013 for possessing dangerous drugs (and other drug offences) unlawful use of motor vehicles and receiving tainted property; and

    (vi)16 months imprisonment on 3 November 2014 for the offence of aggravated supply of second schedule drug in correctional institution.

22. The Applicant therefore has a substantial criminal history within the meaning of subsection 501(7)(c) of the Act, such that he does not pass the character test.

23. I must therefore move on to the next question: whether there is another reason why the discretion under section 501CA(4) of the Act, to revoke the mandatory cancellation of the Applicant’s visa, should be exercised.

    ISSUE 2: HOW SHOULD THE DISCRETION IN SECTION 501CA(4) BE EXERCISED?

    The legislative framework

24. In considering whether to exercise the discretion in section 501CA(4) of the Act, the Tribunal is bound in accordance with section 499(2A) to comply with any directions made under the Act. In this case Direction No. 65 (“the Direction”) applies. The Direction provides guidance for decision makers on how to exercise the discretion. Relevantly, it states that:

    “…a decision maker must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.”[6]

    [6] Direction No 65, paragraph 7(1)(b).

25. The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three primary considerations that the Tribunal must take into account:

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

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

    (c)Expectations of the Australian community.

26. Paragraph 8(1) of the Direction provides that decision makers must take into account the primary and other considerations relevant to the individual case.

27. The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims; and

    (e)Extent of impediments if removed.

28. The Direction also sets out at paragraph 6.3 a number of principles that should be taken into account when assessing the above considerations. I note that these principles have been accurately cited at paragraph [13] of the Respondent’s SFIC.

    Primary Consideration A:  Protection of the Australian Community from Criminal or Other Serious Conduct.

29. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that 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

30. The Applicant’s conduct to date is clearly of a serious nature. This was conceded by the Applicant and his representative at the hearing. His criminal history is appalling. Putting aside for a moment the repeated nature of the offending, this Applicant has contrived to continue his offending – indeed his very serious offending – in circumstances where he has received at least two separate and distinct warnings from the Department that his offending was placing his visa status into serious jeopardy. Despite those warnings, the offending continued. To my mind, this wanton disregard for authority preventing him from ceasing and/or moderating his conduct in order to protect his visa status, is almost as telling as the offending itself.

31. Turning now to the Applicant’s criminal history, it is clear there is an underlying theme of issues and difficulties with illicit substances. It is clear to see that his offending has (1) often motivated his conduct to interfere with the personal and property rights of others while also (2) causing him to exhibit a severe lack of judgement and to otherwise measure and moderate his conduct. It is notable, that the sentencing courts, armed with the knowledge that terms of imprisonment are usually regarded as the last resort in the sentencing hierarchy, nevertheless felt compelled to impose a custodial term(s).

32. There is no escaping the seriousness of his criminal history. We are talking about – in custodial sentencing time for his individual offences - a total period something in the order of 241 months or approximately 20 years of custodial time. I appreciate some of the custodial sentences were ordered to be served concurrently or otherwise suspended. But that does not assist the Tribunal in assessing this Applicant’s conduct. The fact the offences were committed in the first place and subsequently attracted a sentence of custodial time is what must be considered. How the sentencing courts decide to impose or apportion that custodial time is a matter for those courts. The Tribunal’s task now is to look at each individual offence, how it was punished and how it impacted on the rights of other people in the community.

33. A further and perhaps more forensic examination of his criminal history reveals the sentencing court(s) have tried to ameliorate the harshness and sheer disruption that custodial terms have on any offender’s life by (1) on occasion, suspending those terms, (2) making certain of the terms concurrent with each other, (3) putting aside the option of custodial time in favour of more remedial forms of retribution such as community service orders and/or drug rehabilitation orders, and (4) entirely suspending his sentences in lieu of payment of fines and on one occasion a very large sum in restitution – in the order of $124,262.15.

34. Despite these concerted efforts by the sentencing courts, none of it seems to have succeeded in moderating or controlling the Applicant’s offending. His final serious offence is extraordinary both for its level of seriousness (having regard to what had occurred before) and for the brazen nature of the offending involving as it did, aggravated circumstances of the supply of a second schedule drug while in a correctional institution.

35. When having regard to the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1 of the Direction specifies that decision-makers must have regard to a number of factors. Relevantly, amongst those factors are (a) the principle that violent and/or sexual crimes are viewed very seriously; … (c) the sentence imposed by the courts for a crime or crimes; (d) the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness; (e) the cumulative effect of repeated offending; … (g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status. …

36. I therefore have little difficulty in agreeing with the Minister’s delegate in finding that the totality and consistently serious nature of the Applicant’s offending can only be viewed seriously in terms of its overall impact on the community.

    (b) The Risk to the Australian Community should the Applicant continue to commit further offences or engage in other serious conduct

37. Paragraph 13.1.2(2) of the Direction provides two factors the Tribunal must have regard to in determining the risk to the Australian community of the Applicant re-offending or continuing to engage in other serious conduct. They are:

    (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 reoffending …

    The Nature of Potential Future Harm

38. The Applicant has committed a number of offences involving significant transgressions against the personal and property rights of others. He has committed at least seven criminal offences involving the infliction of physical harm on others. This offending can only be viewed as serious. There are at least seven criminal offences relating to physical altercations with lawful authority (assault / obstructing police). In perhaps the most significant escalation of the severity of the offending, he has been convicted of aggravated supply of a second schedule drug while housed in the very custodial institution in which he was serving custodial time for his previous offending.

39. There is a clear consistency in the offending in terms of its escalating severity and refusal to submit to lawful authority. The Applicant’s criminal history is suggestive of an overall demeanour oriented towards him getting his own way and trying to make sure nothing obscures or otherwise gets in the way of what he wants to achieve. Despite warnings from the government about his visa status, implied warnings and favourable sentencing outcomes from courts and despite his mature age (he is now 35) during much of his offending, he continued to reoffend.

1. Having regard to the nature of this past conduct, should he reoffend in a similar manner, I am of the view that he would pose a grave risk to individuals in the Australian community. His offending against the personal rights of others, the property rights of others, and his escalating involvement in drug offending – if repeated – could result in members of the Australian community suffering anything from financial loss, serious physical and/or psychological injuries to, conceivably, death.

2. Though I recognise that the Applicant contends he poses no future risk of harm, this contention is unsubstantiated. Taking into consideration the nature of his previous offending, I consider that the potential future harm he may cause to members of the Australian community is great.

   Likelihood of engaging in further criminal or other serious conduct

3. The Applicant contends that he is not likely to continue to offend or otherwise engage in serious conduct because he has changed. He says he is remorseful, that he has changed his ways and that the version of himself represented by the criminal history no longer exists. He speaks of taking steps to rehabilitate himself but in the absence of any convincing and forensic psychiatric examination and report, one has difficulty in being convinced that there is some kind of underlying psychiatric rationale behind a pattern of offending – indeed serious offending – that has run for over 15 years.

4. Whilst I recognise that the Applicant says that the spectre of deportation will have a lasting impact on his behaviour, I do not consider this sufficient ground for finding that he is not likely to reoffend.

5. The Applicant has received in excess of 20 custodial terms for his offending, yet this has had no discernible impact on his pattern of offending or his behaviour more generally. It is therefore unlikely that being detained or being removed from his family is a sufficient catalyst for the Applicant to change his ways. As mentioned earlier, he was issued with multiple notices relating to an intention to consider cancellation of his visa under s 501(2) of the Act. Yet, even after knowing his visa would likely be the subject of cancellation action and that he would thereby need to pass the “character test”, he continued on a quite serious pattern of offending culminating in the serious offence of aggravated supply of a second schedule drug whilst in actual custody. This indicates to me that even if the Applicant genuinely considers himself a changed man, it is likely that he will eventually return to his previous pattern of offending.

6. There are four key characteristics of the Applicant’s criminal history and conduct to date that further point towards the likelihood of his reoffending.

7. First, as briefly mentioned above, his offending has continued over a long period of time (over 15 years), at fairly consistent, indeed increasing, levels of seriousness.

8. Second, in addition to his offending, the Applicant’s history of a refusal to accept and respect lawful authority is, to my mind, of particular concern. In considering matters like this, I have regard to the nature and severity of the offending. That type of conduct is or could, on some occasions, be understood where it derives from a dispute between two private citizens, or alternatively, for example, the offender’s addiction to illicit substances. However, when that offending involves repeated challenges to lawful authority and a refusal to acknowledge lawful authority, the offending becomes, to my mind, of a nature that is more likely to be repeated. This is because the offender often does not fear retribution by lawful authority for his offending. In those circumstances the risk of reoffending is higher.

9. Third, it should be noted that the Applicant talks about taking positive steps to rehabilitate himself and that he is otherwise remorseful for what he has done. The Tribunal was referred to reports referring to past trauma in his life involving the alleged murder of his baby daughter by a previous relationship and sexual abuse he says he suffered as a child. Those matters, although ventilated at the hearing, can only go so far in terms of explaining his criminal history. The term “alleged murder” was adopted in relation to his daughter but as I understood the evidence, no conviction has resulted. Further, certain report writers refer to asserted past trauma as a child but those reports do not forensically analyse those asserted symptoms, what role they have played in the development of the Applicant’s persona throughout his life and how those factors have materially contributed to his serious history of offending. I also have misgivings about these types of factors raised, as it were, at “death’s door”, when applications like this come before tribunals or courts for determination. One wonders about the reason for the Applicant’s silence and absence of complaint about these factors throughout his adult life thus far and why these factors only emerge when serious decisions about these types of applications have to be made.  

10. Finally, the Applicant sought to downplay and minimise the circumstances of his past offending. His overall demeanour seemed to suggest that much of his offending was due to extraneous factors (such as the abovementioned past trauma) having somehow repressed his anger, resulting in abuse of alcohol and illicit drugs, that in turn, has “fuelled his past offending and criminal behaviour”.[7]

    [7] Exhibit 1, Applicant’s SFIC, at [17(a)].

11. I find this evidence concerning because it indicates the Applicant either does not take responsibility for, or otherwise seeks to avoid the consequences of, his previous offending. I consider this behaviour illustrates the Applicant has a still flawed ability to distinguish right from wrong. This again increases the likelihood of reoffending.

12. In consideration of the above factors, I determine that primary consideration A weighs heavily in favour of the Applicant’s visa remaining cancelled. 

    Primary Consideration B: The Best Interests of Minor Children in Australia Potentially Affected by the Decision

13. At the time of the hearing there was no evidence before me that the Applicant is the biological father, or that he otherwise has parental responsibility, of any minor children in Australia.

14. At the hearing, there was evidence about a putative six year old child of the Applicant. The evidence was to the effect that the Applicant “…has recently found out that he may have a six year old daughter in Bendigo Australia, that he never knew about, we are waiting for DNA test results to come back….”[8]. The claims have been put to the Applicant’s parents by the biological mother of that putative child.

    [8] See Exhibit 6(a), Witness Statement of Wendy and Wipere Davis.

15. It was contended on behalf of the Applicant that:

    “Whilst it is intended that these claims will be verified by way of a paternity test, it is in the best interests of that child to have the opportunity to have those claims verified particularly as there is information that the child is not in suitable parental care.”[9]

    [9] See Exhibit 1, Applicant’s SFIC at [26].

16. Neither at the hearing nor subsequent to the hearing was there any DNA paternity testing result made available to the Tribunal. The existence or otherwise of any further child of this Applicant remains a matter of speculation. Further, even if a biological link were established, there is no evidence of any past involvement of this Applicant in the life of that child.

17. The Respondent helpfully referred the Tribunal to an earlier decision in the matter Singh v Minister for Immigration and Border Protection [2014] AATA 37. There, the Tribunal allocated no weight to this Primary Consideration B in circumstances where there was uncertainty about whether the Applicant was the father of a minor child in Australia. In considering whether a child is a “relevant” child – that is, a child who would be affected by this decision - the Tribunal must first consider whether it is satisfied of the demonstrable existence of such a child. In the matter of Singh, there were Family Court Orders actually referring to a particular child in respect of which that Applicant was seeking rights of contact and visitation. Additionally, that Applicant was compelled to undergo DNA paternity testing to establish any biological connection to the subject child. That Applicant also had never had contact with the putative child and would not unless he got a Family Court Order granting him such access. The Tribunal in Singh could not be satisfied that the Applicant was likely to play any parental role in relation to the asserted child in the future or that his separation would have any effect on that child.

18. In these circumstances the Tribunal in Singh did not attach any weight to this primary consideration B. On appeal, the Federal Court endorsed this view.

19. I accordingly agree with the Respondent’s contention that the Tribunal cannot be satisfied there is a minor child in Australia that could be affected by this decision in circumstances where, aside from contentions made on behalf of the Applicant, there is simply no evidence of such a child.

20. Even if I were so satisfied that there was a minor child in Australia that could possibly be affected by this decision, the evidence is not suggestive of this Applicant being likely to fulfil a positive parental role in relation to the child in the future, or that separation from the Applicant would have any adverse effect on the child.

    Primary Consideration C: The Expectations of the Australian Community

21. I turn now to the final primary consideration: the expectations of the Australian community.  In making this assessment, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community, and whether the Australian community would expect that someone with his character concerns and history of offending should continue to hold a visa. I must also have regard to the Government’s views in this respect.

22. The basic question arising from this primary consideration is whether the Australian community would reasonably expect that a person with this Applicant’s criminal history should be allowed to hold a visa to remain in this country. Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of this Applicant’s offending is such that the Australian community would expect that he should not hold a visa. Taking into account the consistent and quite serious nature of his offending for which he has been charged and convicted, there is, to my mind, little or no doubt that the Australian community would expect that this Applicant should not hold a visa.

23. The inexcusable offences against the personal and property rights of other people could – on their own – quite understandably result in a lowered tolerance in the Australian community of any criminal or other serious conduct. This offending is further adversely flavoured by his refusal to submit to lawful authority and by the escalating nature of his offending. This Applicant is aged 35 years. Granted, he first came to Australia as a minor aged six years. His contribution to Australia as a minor would, on any reasonable view, be limited. Even on that score, his constant brushes with lawful authority since he was a minor cannot be construed as positively contributing to the Australian community. It is notable that his first offence and subsequent court appearance where he was found guilty of stealing was in 1997, occurred when he was 15 years of age.

24. However, the more important point is that for the period of his adulthood (some 17 years) – and surely the most appropriate time for him to make or start to make any contribution to the Australian community - has been dominated by constant interactions with lawful authority. Plainly, he has spent most of his adulthood thus far dealing with the consequences of his serious offending instead of getting on with his own career and/or personal development. 

25. Any contribution this Applicant may have made to this community – not apparent to me from the evidence in any event - is significantly outweighed by his serious conduct resulting in the custodial and other terms imposed on him. His references do speak well of him and indicate that given a life away from constant offending, the Applicant does have potential for enhanced self-development. Similarly, his various statements of attainment and certificates of completion each indicate that when he directs his curiosity and discipline towards constructive pursuits, he completes a given course or task. However, this Applicant has, to my mind, a significant way to go before he can convince any decision maker in my position that were he to remain in this country, the Australian community could (1) reasonably expect there would be no risk of him reoffending, (2) that he has resolved his drug and alcohol issues and that (3) he will then embark on a crime-free career involving fulfilment for himself and positive benefits for the Australian community.

26. I therefore have grave difficulty in accepting this Applicant, with: (a) his total history of offending, (b) an unconvincing demonstration of rehabilitation and re-orientation of his life, and (c) his minimal contribution to the Australian community; would meet the reasonable requirements of the Australian community that he hold a visa to stay here. 

27. I therefore cannot believe that the Australian community would expect that someone with a serious criminal record like the Applicant’s would be granted or allowed to keep his visa. 

28. Having regard to all of these circumstances, I find that this consideration weighs heavily in favour of not revoking the mandatory visa cancellation.

    Other Considerations

29. I turn now to the other considerations listed at paragraph 14 of the Direction.[10] I have considered each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).

    [10] Direction No 65, paragraph 14(1).

30. With reference to other consideration (a) – International Non-refoulement obligations – The Applicant does not contend that this consideration is of relevance nor does the evidence indicate that an assessment of this consideration is necessary in the circumstances. New Zealand is a sufficiently large and expansive country. There is no legal or other requirement on this Applicant to return to a specific area or district. In any case, I find this other consideration is of little or no relevance to the matter before me.

31. With reference to other consideration (b) – Strength, nature and duration of ties to Australia – the Applicant has been in Australia on virtually a continuous basis since he was six. He has completed his education in this country and any work experience he has done has been in this country. Additionally, the Respondent acknowledges that the Applicant has strong family ties to Australia with the majority of his family members residing here and wanting him to remain here, and also that his baby daughter is buried here.[11] It can be noted that the Applicant has participated in the workforce in this country as is evidenced by his limited employment as a carpet layer and labourer during the period 1999 to 2007. However, any such contribution must be tempered against the totality of his criminal history. I am inclined to agree with the Respondent’s contention that overall, while this particular other consideration may favour the Applicant, it does not do so to any significantly convincing extent. To the extent it does, it is significantly outweighed by Primary considerations A and C.

    [11] See Exhibit 2, Respondent’s SFIC at [84].

32. With reference to other consideration (c) – Impact on Australian business interests – there is no suggestion that any Australian business interests would be impacted if the Applicant’s visa cancellation is not revoked. It can be noted in passing that the Applicant has apparently operated a carpet laying business in the past but no longer has any involvement in such or any other business. It can also be noted that the Tribunal heard evidence about employment possibilities for the Applicant were he be allowed to remain here.[12] However, none of these businesses are reliant on him remaining employed with them. This particular other consideration is of no weight to my consideration.

    [12] See Exhibit 6(a), (Applicant’s father says he can get him a job on the construction site where he works); and Exhibit 6(b), (Reference from Global HR Pty Ltd saying they would have no hesitation in offering him work).

33. With reference to other consideration (d) - Impact on victims - the Respondent contends that the Applicant’s violent offending has resulted in significant physical and/or financial harm to others. I agree with that contention. Although there is no specific evidence about the impact on those victims were the Applicant allowed to remain in Australia, my finding is that this other consideration does not assist the Applicant.

34. With reference to other consideration (e) - Extent of impediments if removed  - the Applicant claims that the alleged murderer of his daughter lives in New Zealand and that he is consequently at risk or in danger were he to be returned to New Zealand. Additionally, the Applicant believes that removal to New Zealand, away from his strong support network in Australia, will only lead to a relapse of his propensity to abuse alcohol and/or illicit drugs, and in turn place him at risk of resuming his pattern of offending. The Respondent acknowledges that relocation to New Zealand would not be easy for the Applicant. However, the Respondent contends, validly to my mind, that there are no significant practical obstacles to the Applicant resettling in New Zealand of the kind anticipated in paragraph 14.5 of the Direction. These factors include: (a) the Applicant’s age and health; (b) whether there is a substantial language or cultural barrier; and (c) any social, medical and/or economic support available to them in that country. The Respondent has referred me to authority in relation to removing an Applicant back to New Zealand. In Tera Euna and Minister for Immigration and Border Protection the Tribunal commented that:

    “New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the Applicant if he returns to New Zealand. …(He has previously lived there and visited on occasions)... New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The Applicant will have access to those services as a New Zealand citizen.”[13]

    [13] Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301 at [101] per SM Kelly.

35. I consider that this fifth other factor is of minimal weight in favour of the Applicant.  In addition to the quoted reasons above, the Applicant has worked as a construction labourer and carpet layer in Australia and there is no impediment to him finding and performing similar work in New Zealand.

    CONCLUSION

36. There is no doubt that on the basis of his offending, the Applicant does not pass the character test as defined in section 501(6) of the Act. In then considering whether to exercise the discretion afforded by section 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. Primary considerations A and C weigh heavily in favour of non-revocation. I have assigned no weight to Primary Consideration B. I acknowledge that some weight should be allocated to some of the ‘Other considerations’ but not to the extent it outweighs the primary and other considerations which favour non-revocation.

    DECISION

37. For the reasons outlined above, I affirm the decision under review.

I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

........................................................................

Associate

Dated: 19 July 2017

Date of hearing:	Friday, 10 March 2017
Advocate for the Applicant:	J. Samuta, Samuta Migration
Solicitors for the Respondent:	R. Noronha, Clayton Utz