Divane and Minister for Immigration and Border Protection (Migration)
[2016] AATA 728
•21 September 2016
Divane and Minister for Immigration and Border Protection (Migration) [2016] AATA 728 (21 September 2016)
Division
General Division
File Number
2016/3537
Re
Jesse Divane
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member Tavoularis
Date 21 September 2016 Place Brisbane The decision under review is affirmed.
..........................[sgd].............................
Senior Member Tavoularis
Catchwords
MIGRATION – Temporary visa – Applicant is a New Zealand citizen – Applicant did not declare substantial criminal history upon arrival – s 501 character test – visa cancelled - whether primary considerations weigh against Applicant – discretion should be exercised against the Applicant – decision under review affirmed
Legislation
Migration Act 1958 (Cth) s 500, 501
Cases
Botha and Minister for Immigration and Border Protection [2016] AATA 614
Tauariki and Minister for Immigration and Citizenship [2013] AATA 475
Zheng and Minister for Immigration and Citizenship (2011) 121 ALD 372; [2011] AATA 304
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 (“Direction No. 65”)
REASONS FOR DECISION
Senior Member Tavoularis
21 September 2016
INTRODUCTION
This is an application for a review of the decision of a delegate of the Minister for Immigration and Border Protection (“the Minister”) to cancel Mr Jesse Divane’s visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (“the Act”). Under s 500(1)(b) of the Act, this Tribunal has jurisdiction to review the decision of the delegate.
BACKGROUND
Mr Divane is a citizen of New Zealand. On 22 August 2013 Mr Divane entered Australia holding a Class TY Subclass 444 Special Category (Temporary) visa. He currently resides in Australia with his family.
Upon entering Australia in 2013, Mr Divane made two false declarations on his Incoming Passenger Card. Most notably, in response to the question “Do you have any criminal conviction/s?” he marked the option “No”. In fact, Mr Divane has a lengthy history of offending in Australia and New Zealand.
Mr Divane was born in New Zealand in 1982. He first arrived in Australia on 4 May 1987, and went back and forth from Australia to New Zealand a number of times before returning on 6 June 1996. Before returning to New Zealand he committed the offence of wilful damage in 1995 and was issued with a caution by the Queensland Police.
From 1998 until he departed New Zealand for Australia in 2013, Mr Divane was found guilty of committing 47 offences, on 35 separate occasions. Though the severity of these offences varied, ranging from wilful damage to drug possession to burglary, of greatest concern is the fact that 11 of his offences were of a violent nature. It is also worth noting that several of his convictions were for escaping police custody and several others for failing to abide by court orders or directions.
On three occasions whilst in New Zealand, Mr Divane was sentenced to more than 12 months’ incarceration. The first of these sentences was imposed on 17 January 2003 for burglary, and was for a period of 12 months. The latter two were both imposed on 23 July 2009, firstly, an 18 month sentence for threatening to kill or do grievous bodily harm (“GBH”), and secondly, a 12 month sentence for “male assaults female” (as this type of offending is categorised in New Zealand).[1]
[1] See Exhibit 4, s 501 “G-documents”, G43, pages 230-236.
Mr Divane also has a lengthy history of domestic violence. In all, his New Zealand police record shows 23 incidents of family violence involving Mr Divane and his partner and the mother of his children, Ms Vestvik.[2] Another 10 incidents of domestic violence have taken place since coming to Australia in 2013.[3]
[2] See Exhibit 2, Respondent’s Supplementary Statement of Facts, Issues and Contentions, paragraph [4] and Attachments A1 and B1.
[3] See Exhibit 1, Respondent’s Statement of Facts, Issues and Contentions, paragraph [10] and [11],
On 18 September 2013, Mr Divane was served with a notice of intention to consider the cancellation of his visa. On 10 June 2016, a delegate of the Minister decided to cancel Mr Divane’s visa pursuant to s 501(2) of the Act. This decision was served on Mr Divane on 30 June 2016. On 7 July 2016, Mr Divane applied to this Tribunal for a review of the decision.
ISSUES
The Minister’s decision to cancel Mr Divane’s visa was made on two grounds. I must consider and address both of the following issues:
(a)Whether Mr Divane passes the “Character Test” as defined in s 501(6) of the Act; and
(b)whether, having regard to the considerations in Ministerial Direction No 65, the discretion appearing in s 501(2) of the Act should be exercised to cancel Mr Divane’s visa.
I am satisfied that Mr Divane does not pass the character test in s 501(6), and consider that the Minister’s delegate correctly exercised the discretion in s 501(2) of the Act to cancel Mr Divane’s visa. My reasons are set out below.
ISSUE 1: DOES MR DIVANE PASS THE CHARACTER TEST?
Mr Divane has not sought to dispute the Respondent’s contention that he does not pass the character test. However, for the sake of completeness of reasoning, I will address it here.
Section 501(6) of the Act provides a number of circumstances in which someone will not meet the “Character Test”. Most relevant here is s 501(6)(a), under which a person does not pass the character test if they have a “substantial criminal record”, as defined in s 501(7) of the Act. In s 501(7), a person has a “substantial criminal record” if they have been sentenced to a term of imprisonment of 12 months or more.[4] 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.
[4] Section 501(7)(c) Migration Act 1958 (Cth).
As mentioned above, Mr Divane has been sentenced to not one, but three terms of imprisonment of 12 months or more. He was sentenced to 12 months each for burglary and “male assaults female” in 2003 and 2009, respectively, and 18 months for threatening to kill or do grievous bodily harm in 2009.
Mr Divane therefore has a substantial criminal history within the meaning of that subsection such that he does not pass the character test. I must therefore move to the next question: whether the discretion under s 501(2) of the Act to cancel Mr Divane’s visa should be exercised.
ISSUE 2: SHOULD THE S 501(2) DISCRETION TO CANCEL MR DIVANE’S VISA BE EXERCISED?
The Legislative Framework
In considering whether to exercise the discretion in s 501(2) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with Direction No. 65 (“the Direction”). 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 A or Part B where relevant in order to determine whether a non-citizen will forfeit the privilege of being granted or of continuing to hold a visa.[5]
[5] Direction No 65, paragraph [7].
The considerations relevant to cancelling a non-citizen’s visa appear in Part A of the Direction. Paragraph 9 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.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case. The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 10 of the Direction. These considerations are:
(a)International non-refoulment 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.
The Direction also sets out at paragraph 6.3 a number of principles that should be taken into account when assessing the above considerations. Relevantly, some of those principles include:
(1) …being able to come into 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.[6]
(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.[7]
(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,… should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.[8]
(4) …..
(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 for only a short period of time....[9]
Primary Consideration A: Protection of the Australian Community from Criminal or Other Serious Conduct
[6] Direction No. 65, paragraph 6.3(1).
[7] Direction No. 65, paragraph 6.3(2).
[8] Direction No. 65, paragraoh 6.3(3).
[9] Direction No. 65, paragraph 6.3(5).
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 9.1 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 Mr Divane’s Conduct to Date
Mr Divane’s conduct to date is of a very serious nature. Not only is his criminal record lengthy, but it also contains a number of repeat offences, beginning when he was of a young age and spanning the majority of his adult life. Further and perhaps more significantly, his offending has included a number of serious and violent offences, including in a domestic setting. Most notable among these are a number of assault convictions and a threat to kill.
The seriousness of this offending is illustrated by the sentences the Courts have imposed for this offending. In all, Mr Divane has received 25 sentences of imprisonment, as mentioned above three of which were for a period of more than 12 months. .
Mr Divane has demonstrated a particular propensity to commit domestic violence against women. His partner and his sister have both been the victims of this offending. This violence, particularly against his partner, Ms Vestvik, has extended beyond what is recorded on Mr Divane’s criminal record. There have been 33 instances of domestic violence between Mr Divane and Ms Vestvik requiring police attendance. Ten of these instances have occurred since Mr Divane arrived in Australia in 2013.
The Respondent contends that Ms Vestvik should be considered a vulnerable member of the community by virtue of her relationship with Mr Divane, and the fact they have children together. I am inclined to agree. As noted in Tauariki and Minister for Immigration and Citizenship [2013] the applicant’s partner, despite not falling within the categories of persons identified as vulnerable in the Direction, was nevertheless found to be a vulnerable member of the community when that particular applicant violently offended against her on repeated occasions. [10]
[10] Tauariki and Minister for Immigration and Citizenship [2013] AATA 475 at [28] per DP Deutsch and SM Britton.
In considering the nature and seriousness of Mr Divane’s conduct, I must also consider whether he has provided false or misleading information to the Department. Unfortunately for Mr Divane, he has. On his arrival in Australia in August 2013, Mr Divane intentionally provided a false declaration on his incoming passenger card, declaring that he had no criminal convictions and thereby intentionally concealing his criminal history.
In consideration of all of the above, I determine that Mr Divane’s conduct has been of a violent and very serious nature. Consequently, this factor weighs heavily in favour of exercising the discretion to cancel Mr Divane’s visa.
(b) The Risk to the Australian Community Should Mr Divane Continue to Commit further Offences or Engage in Other Serious Conduct
Paragraph 9.1.2(2) of the Direction provides two factors the Tribunal must have regard to in determining the risk to the Australian community of Mr Divane reoffending 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; and evidence of rehabilitation achieved by the time of the decision…
The Nature of Potential Future Harm
Mr Divane has committed a number of violent offences, made a threat to kill, and has been involved in 33 incidents involving domestic violence. 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 domestic violence could in the future, and likely does already, pose a serious risk to the mental and physical wellbeing of his family members, particularly his partner and children. Violent offending in the nature of his previous offending could result in members of the Australian community suffering anything from serious physical and psychological injuries to death.
Though I recognise that Mr Divane contends that he poses no future risk of harm, this contention is unsubstantiated. Taking into consideration the nature of Mr Divane’s previous offending, I consider that the potential future harm he may cause to members of the Australian community is great.
The Likelihood of Reoffending, or Continuing to Engage in Other Serious Conduct
Mr Divane contends that he is not likely to continue to offend or otherwise engage in serious conduct because he has changed. He says that the version of himself that committed a number of violent offences, “no longer exists”.[11]
[11] Exhibit 3, Applicant’s Statement of Facts, Issues and Contentions, page 2.
Whilst I recognise that Mr Divane says that the spectre of deportation will have a lasting impact on his behaviour, I do not consider this sufficient grounds for finding that he is not likely to reoffend.
Mr Divane has received 25 sentences of imprisonment, yet this has had no discernible impact on his pattern of offending. It is therefore unlikely that being detained or being removed from his family is a sufficient catalyst for Mr Divane to change his ways. Further, Mr Divane was issued with a notice of intention to consider cancellation of his visa under s 501(2) of the Act via a letter dated 18 September 2013.[12] This was less than one month after he entered Australia. Yet during his time in Australia, when Mr Divane knew his visa would likely be the subject of cancellation action and that he would thereby need to pass the “character test”, he was a key participant in 10 separate incidents where police were called to his house because of a domestic dispute. This indicates to me that even if Mr Divane genuinely considers himself a changed man, it is likely that he will eventually return to his previous pattern of offending.
[12] Exhibit 4, G-Documents, G7, page 77.
There are five key characteristics of Mr Divane’s criminal history and conduct to date that further point towards the likelihood of his reoffending.
First, as briefly mentioned above, Mr Divane’s offending has continued over a long period of time (approximately 18 years), at fairly consistent levels of seriousness.
Second, in addition to his offending, Mr Divane’s history of domestic violence is also long-standing. Police have been called to his home on numerous occasions in relation to incidents where domestic violence was alleged, on ten occasions in the three years he has been in Australia, on top of the 23 separate incidents in New Zealand.
Though I note that Mr Divane disputes some of the facts contained in the police records, I give them considerable weight. Their contemporaneity with the events, the number of reports, and the fact the police had no vested interest in portraying the circumstances one way or another, all point towards their accuracy. Though it is unclear whether there was physical violence in the incidents that occurred in Australia, they were certainly serious verbal disputes with accompanying incidents of property destruction. I consider it particularly relevant that Ms Vestvik applied for a protection order as recently as 25 May 2015. In the Application her stated grounds for a protection order against Mr Divane were:
“Due to consistent domestic violence and destruction of my property, I felt scared of what this confrontation might lead to. This has been happening for some time. The majority of the arguments are due to financial problems and his substance use.”[13]
In her oral evidence, Ms Vestvik confirmed the statements made in her application for a protection order.
[13] See Exhibit 2, Respondent’s Supplementary Statement of Facts, Issues and Contentions, paragraph [19] and Attachment Y1.
Third, it should be noted that Mr Divane mentioned in his interview with an officer of the Department that he was working full-time and that things were going well for him in Australia.[14] Should things continue to go as they are, this weighs on the side of Mr Divane not reoffending. The concern, however, is if things start to go the other way for Mr Divane. It appears from his Family Violence Report that a significant number of his domestic incidents have occurred as a result of arguments that escalated. This points towards the conclusion that Mr Divane has a propensity to react disproportionately to even minor negative stimuli. This risk is most pertinent to Ms Vestvik and their children, but Mr Divane’s offending has been perpetrated against a number of others, including members of the public.
[14] See Exhibit 4, s 501 “G-documents”, G26, page 155; and Exhibit 1, Respondent’s Statement of Facts, Issues and Contentions, paragraph [47].
Fourth, it is telling that Mr Divane deliberately concealed his substantial criminal history upon his arrival in Australia in 2013. I accept the Respondent’s contention that this clearly indicates that Mr Divane does not properly accept responsibility for his past conduct and seeks to avoid its consequences.
Finally, Mr Divane not only sought to conceal his substantial criminal history upon his arrival in Australia, but in his oral evidence, he sought to downplay and deny the circumstances of his past offending. Particularly notable is his assertion that the Court’s finding that his threat to kill, although serious, was somehow untrue. He has also sought to disparage police accounts of events pertaining to his offending.
This evidence is concerning because it again indicates that Mr Divane either does not take responsibility for, or otherwise seeks to avoid the consequences of his previous offending. Particularly in a situation where the Tribunal cannot go behind the original conviction – I have to accept findings of fact upon which convictions are based[15] – this behaviour illustrates in Mr Divane a still flawed ability to distinguish right from wrong. This again increases the likelihood of reoffending.
[15] Zheng and Minister for Immigration and Citizenship (2011) 121 ALD 372 at 408-409; [2011] AATA 304 at [121]. See further Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; [2000] FCA 1385 at [41]–[45] per Branson J for a summary of the law relating to the way in which an administrative decision-maker may have regard to a conviction and the facts on which it is based.
In consideration of the above factors, I determine that primary consideration A weighs heavily in favour of the cancellation of Mr Divane’s visa.
Primary Consideration B: The Best Interests of Minor Children in Australia Potentially Affected by the Decision
In relation to primary consideration B, Mr Divane’s evidence is that there are five minor children that may be affected. Those are his two biological daughters (aged 8 and 14 years), his stepson (aged 16 years), his stepdaughter (aged 17 years), and his step-grandson (age unknown, likely aged around 2 years).
As a general principle, a child’s best interests will be served if they are able to remain with their parent, unless there is evidence to suggest the contrary. Paragraph 9.2(4) of the Direction includes a number of factors to be considered where relevant. This includes:
·the extent to which the non-citizen is likely to play a positive parental role in the future;[16] and
·the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child.[17]
[16] Direction No. 65, paragraph 9.2(4)(b).
[17] Direction No. 65, paragraph 9.2(4)(c).
In his oral evidence, Mr Divane has indicated that both his step-children live outside the family home. In light of this, and because they are close to the age of majority, I consider the potential impact on his step-children to be relatively minor.
There has also been little evidence of the role Mr Divane plays in the life of his step-grandson, and I certainly do not recall any evidence that he plays a significant or parental role in his step-grandchild’s life. I therefore consider this impact to also be minor.
The question with respect to Mr Divane’s biological daughters requires rather more consideration. There is a significant pattern of domestic violence perpetrated by Mr Divane, including a threat to kill their mother. Even more worryingly, this has continued throughout the lives of his children, and there is evidence that at least some of it, including incidents in both Australia and New Zealand, was perpetrated in their presence. This constitutes a demonstrated disregard for the best interests of his children.
Most concerning of all, there is also evidence that on some occasions, Mr Divane’s children have themselves been the victims of his violence. In particular, the police report to an incident in Australia in December 2013 indicates that Mr Divane punched and scratched his minor stepson, causing him to suffer injuries. This stepson also told police at the time that Mr Divane had previously told him that he (Mr Divane) enjoys punching him.[18]
[18] See Exhibit 2, Respondent’s Supplementary Statement of Facts, Issues and Contentions, attachment N1.
The weight of this evidence indicates that Mr Divane would be unable to play a positive parental role in the future. Rather, his offending has on at least one occasion physically injured his children. Indeed, even if this physical harm were to be ignored, Mr Divane has exposed his children to violence throughout their entire lives, and there is a significant likelihood that he would do so again, with dire psychological consequences for them. The extent to which Mr Divane has been able to play a positive role in the lives of his children has been further limited because of his repeated offending. He has spent a significant amount of their lives in prison, and was subject to a protection order in favour of his children for a number of years, limiting the contact he was able to have with them.
The Direction at Paragraph 9.2(4)(f) provides that any known views of the child[ren] must be taken into account, so long as they are given due weight in accordance with the age and maturity of the child[ren].[19]
[19] Direction No. 65, paragraph 9.2(4)(f).
The Tribunal has been furnished with a number of statements from Mr Divane’s children.[20] Each letter emotively states the children and step-children’s desires to remain with Mr Divane, and the role he plays in their lives. Though one is undated, it appears that each letter was written in the closing months of 2013, in response to the Department’s notice of intention. At that time, his biological children would have been approximately 6 and 11 years old, and his step children would have been approximately 13 and 15 years old. His youngest daughter did not write a letter.
[20] See Exhibit 4, Section 501 “G-documents”, G16 – G20.
The Respondent contended that, in view of the children’s young ages and the fact their long exposure to domestic violence would have normalised that behaviour to them, these letters should be given little weight. I accept those points. I further add that as these letters were written nearly two years ago, they may not reflect the current views of the children.
In consideration of the above factors, and placing particular weight on the impact of the children being exposed to Mr Divane’s domestic violence, I find that this consideration weighs in favour of cancellation of Mr Divane’s visa.
Primary Consideration C: The Expectations of the Australian Community
I now turn to the final primary consideration: the expectations of the Australian community. In making this assessment, Paragraph 9.3(1) of the Direction provides that I should consider whether Mr Divane 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.
As has been noted above, Mr Divane has an extensive history of criminal offending, including 47 criminal convictions and 25 sentences of imprisonment. This history has included convictions for a number of violent offences, in addition to offences against his partner and mother of his children. None of this was declared upon Mr Divane’s arrival into Australia in August 2013, as is required by law.
I have significant doubts as to whether the Australian community would expect that someone with an extensive criminal record like Mr Divane’s would be granted or allowed to keep his visa. Further, given the current levels of public awareness of domestic violence and negative sentiment towards it, it is in my view unlikely that the community would expect a person with 33 separate incidents of domestic violence, ten of which occurred in Australia, and one of which led to the imposition of a term of imprisonment of 12 months, would not have their visa cancelled.[21]
[21] See Exhibit 2, Respondent’s Supplementary Statement of Facts, Issues and Contentions, paragraph 4 and 35, and attachments A1, B1, N1 – Q1, R1 – V1; and Exhibit 4, Section 501 “G-documents”, G43
I also note that at the hearing, Mr Baird, one of Mr Divane’s colleagues and his own character witness, upon being informed, for the first time, of Mr Divane’s criminal history, agreed that the Australian community would not expect someone with Mr Divane’s criminal history to remain in Australia.
I also recognise that the Australian community would likely consider that Mr Divane’s intentional concealment of his criminal history to be a breach of their trust.
The Respondent has submitted that the Government also takes a very serious stance on domestic violence in particular. They pointed to the numerous and costly measures that it is currently taking to address domestic violence in Australia. Further, in a media release issued in September 2015, Prime Minister Turnbull and a number of other government Ministers expressed the view that domestic and family violence has a devastating impact on the Australian community; that domestic, family or sexual violence is unacceptable in any circumstances, and that the issue must be elevated to our national consciousness. I find this material a persuasive statement of the Government’s views on domestic violence.[22]
[22] See Exhibit 1, Respondent’s Statement of Facts, Issues and Contentions, paragraphs 87 – 89 and attachment A and B; and also Exhibit 2, Respondent’s Supplementary Statement of Facts, Issues and Contentions, paragraph 35-37.
See further the decision of DP McDermott in Botha and Minister for Immigration and Border Protection [2016] AATA 614 where the applicant’s attacks on his ex-wife placing her in fear of her life, which attacks occurred at times the children were home, was sufficient for his visa to be cancelled.
Having regard to all of these circumstances, I find that this consideration weighs heavily in favour of the cancellation of Mr Divane’s visa.
Other Considerations
I now turn to the other considerations listed in paragraph 10 of the Direction.[23] I have considered subparagraphs (b), (d) and (e) below. Subparagraphs (a) and (c) have little or no relevance to this matter.
[23] Direction No. 65, paragraph 10(1).
In relation to the strength, nature and duration of his ties to Australia[24], the Respondent notes that he has spent the majority of his life, and the vast majority of his adult life, in New Zealand. Whilst his partner and children live in Australia, his ties to them are only relevant for the purposes of this consideration if they are Australian citizens or permanent residents. No evidence has been provided that this is the case by Mr Divane.
[24] Direction No. 65, paragraph 10(1)(b).
In circumstances where Mr Divane has spent most of his life in New Zealand, and has a number of immediate family members there, I consider that he would have little or no impediments[25] in establishing himself and maintaining basic living standards.
[25] Direction No. 65, paragraph 10(1)(e).
The consideration of the impact on victims,[26] particularly Ms Vestvik and her children, further favours cancellation. There is strong and convincing evidence that Mr Divane has repeatedly committed acts of violence that have been viewed by Courts as serious against Ms Vestvik and at least some of them were committed in the presence of their children. Were Mr Divane to reoffend, those who have already been the victims of his offending would be disproportionately likely to be his victims once again. Given, as I have discussed above, the likelihood that Mr Divane will reoffend, I consider Mr Divane to post an ongoing risk of harm to both Ms Vestvik and their children if he is to remain in Australia.
[26] Direction No. 65, paragraph 10(1)(d).
CONCLUSION
There is no doubt that, on the basis of his offending, Mr Divane does not pass the character test as defined in s 501(6) of the Act. In then considering whether to exercise the discretion afforded by s 501(2) of the Act to cancel his visa, I have had regard to the considerations referred to in the Direction. Primary considerations A and C weigh heavily in favour of cancellation of the visa. Primary consideration B also weighs in favour of cancellation, albeit less strongly. The strength of Mr Divane’s ties to Australia does not weigh particularly strongly against cancellation, and there are few impediments to his successful resettlement in New Zealand.
The decision under review is affirmed.
I certify that the preceding 64 (sixty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Tavoularis ........................[sgd].............................
Associate
Dated 21 September 2016
Date(s) of hearing 7 September 2016 Applicant In person Advocate for the Respondent Ms de Jongh Solicitors for the Respondent Clayton Utz
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