FAIRLAYNE WEBSTER And MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2011] AATA 464
•30 June 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 464
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/1510
GENERAL ADMINISTRATIVE DIVISION ) Re FAIRLAYNE WEBSTER Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member Date30 June 2011
PlaceSydney
Decision The Tribunal affirms the decision under review. ....................[sgd]...................
Ms G Ettinger
Senior Member
CATCHWORDS
IMMIGRATION - Visa cancellation - character test - substantial criminal record - whether Tribunal should affirm Minister’s decision to cancel the Applicant's visa pursuant to s 501 of the Migration Act 1958 - application of Direction 41 issued under s499(1) of the Migration Act 1958 - primary considerations - protection of the Australian community - risk of recidivism - length of time that a person has been ordinarily resident in Australia - other considerations - decision under review affirmed.
Migration Act 1958: s 501
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Direction [no. 41] - Visa Refusal and Cancellation under section 501
REASONS FOR DECISION
30 June 2011 Ms G Ettinger, Senior Member SUMMARY
1.Mr Fairlayne Webster has applied to this Tribunal for review of the decision of a delegate of the Minister for Immigration and Citizenship dated 30 March 2011 to cancel his Class TY Subclass 444 Special Category (Temporary) visa. The visa was cancelled because Mr Webster does not pass the character test as a result of his substantial criminal record, pursuant to section 501(6) of the Migration Act 1958 (the Act). In considering his application, the Tribunal is mindful that although Mr Webster does not pass the character test, the Tribunal may nevertheless exercise a discretion under the Act following the application of Direction 41, because ultimately it must make the correct or preferable decision.
2.Mr Webster represented himself at the Tribunal, although he had his parents and a number of supporters present. His parents and his aunt gave oral evidence and had filed statements by the required date. Mr Webster said that he has changed as a result of his incarceration, and that the courses he has undertaken in gaol have assisted with addressing problems of violence and alcohol he had demonstrated in the past. Mr Webster and his family all gave evidence that the Applicant would have little support in New Zealand, and that he has a loving family here in Australia.
3.The Minister, who opposed the application, was represented by Mr S Moloney of Clayton Utz Lawyers.
4.It is not in dispute, and I am satisfied from the evidence before me that Mr Webster does not pass the character test pursuant to the legislation. I have considered the discretion in section 501 of the Act and the primary and other considerations in Direction 41, and I am satisfied that the Minister’s decision to cancel Mr Webster’s visa should be affirmed. My reasons follow.
BACKGROUND
5.Mr Webster was born in New Zealand in 1988, and came to Australia with his family in February 2005, when he was approximately 16 years old. Mr Webster told me that he attended school in New Zealand until year 9, and went to school for only a week in Sydney, in year 10. He said that he did not like school, and left.
6.Mr Webster gave evidence of having commenced using cannabis from the age of 11 in New Zealand, and breaking and entering houses in order to obtain money to support his habit. I did not have further details of any convictions in New Zealand.
7.Mr Webster told me that he worked in the same factory as his father for six months in 2005, then for a couple of months in 2006, but then could not find further work.
8.Unfortunately, in October 2005 approximately eight months after arriving in Australia on 3 February 2005, Mr Webster, then aged 16, committed a serious criminal offence. The first incident was an aggravated robbery for which Mr Webster was issued with a community service order of 40 hours. Mr Webster said that he had been working, had money, mixed with the wrong types of people, and was drinking.
9.A list of Mr Webster’s other convictions are at Exhibit R2, which is a criminal history of the Applicant issued by the NSW Police. Exhibit R2 indicates that Mr Webster was charged and convicted of five offences in 2007. Each resulted in a fine. He continued offending in 2008. On 29 September 2008 Mr Webster was charged with destroy or damage property, fined, and put on a bond. The Court also recommended anger management, counselling and educational development or drug and alcohol rehabilitation. Mr Webster’s evidence was that he had been drinking all day on the day of the offence, and that the anger and offences had resulted from an argument with a girl.
10.Barely a month later, before he had commenced any of the recommended courses, and in breach of the court orders, Mr Webster was charged with, and convicted of robbery in company. The agreed facts indicated that Mr Webster and two co-offenders were in a taxi at approximately 7:30 pm on 20 October 2008. Whilst one of the others held the taxi driver in a choking fashion around the neck, Mr Webster punched him and stole money and cigarettes out of his pocket. Then, while the co-offender was punching the driver to the ground, Mr Webster stole more money and the keys out of the taxi. Mr Webster told me that he was travelling to a party, and had not intended to be involved in a robbery.
11.Mr Webster also pleaded guilty to a charge of affray which involved violence. Mr Webster received a prison sentence of four years and six months with a non parole period of two years and 10 months which he is currently serving. Mr Webster told me that he has only committed one offence, gambling, in gaol.
12.Judge Syme noted in her Honour’s sentencing notes dated 25 September 2009, that: The offender presents as a binge drinker with significant drug abuse issues. In reference to the psychologist’s report, her Honour stated: … there is some limited insight and limited remorse shown … The offender has a long way to go with respect to developing empathy and maturity…. If he does address his substance abuse issues there is a reasonable prospect of rehabilitation. I also note that this offender has a great deal of family support. Judge Syme told Mr Webster she would refer him to the Compulsory Drug Treatment Program.
13.Mr Webster told me that he lived with his parents and family before being incarcerated, and that he intended to live with his parents who have now moved to Melbourne, if he was permitted to stay in Australia. Mr Webster told me that he felt sorry for his victims and for his parents. He said that the courses he has completed while incarcerated, have taught me heaps.
14.I noted that Mr Webster has undertaken a number of courses whilst incarcerated. They are part of Exhibits A2 and A3. There were a number which I was not able to take into account because they were not served on the Respondent by the requisite date. I noted that Exhibit A2 was the Gurnang Life Challenge Program, a four month course which included modules encompassing wilderness expeditions, experiential learning, theoretical personal growth, a work ethic program, self responsibility, vocational education, and dynamic risk, and that Mr Webster completed all the modules satisfactorily. Exhibit A3 included courses on delivering a presentation, first aid, a positive lifestyle program which included stress management/assertiveness/self-esteem/grief/conflict resolution, a drug and alcohol addiction program, the ‘young adult satellite program’, Certificate III in bricklaying/blocklaying, and a general employee induction course on OH&S.
15.Mr Webster’s parents corroborated what their son said, and both stated that they wanted to provide a stable life for their son in Melbourne.
16.Ms Tania Rewai, Mr Webster’s mother, and Mr Pierre Webster, his father, provided a joint statement (Exhibit A6). Ms Rewai told me that life in New Zealand was hard, and that her son’s early crimes were due to his youth, peer pressure and being impulsive.
17.Mr Webster senior told me that they have visited their son in Sydney three times since they moved to Melbourne in late 2009. He said that his son rings home once a week, and commented that he has noticed a change in him, and a move towards more maturity. Both parents support Mr Webster fully. In that regard I had before me Exhibit A1, a petition supporting Mr Webster’s appeal which his mother had put together. I noted that it has approximately 57 signatures of people who are said to be family, friends and others.
18.As to the family’s circumstances; I noted that Ms Rewai is in a full-time job in Melbourne. Mr Webster senior did a few small casual jobs during 2010, and has now been in a full-time casual job as a storeman and fork lift driver for three months.
19.The family’s other two children a boy aged 19, and a girl of 15, live with the parents in Melbourne. They do not attend school or have jobs. The youngest, aged 13 remained in New Zealand with a close family friend. Mr Webster’s parents said they have been informed they need to pay child support for that child. They said that they had no one in New Zealand who could look after or support Mr Webster if he were to be sent back. They could however visit him from time to time.
20.I noted from the evidence that Mr Webster’s parents have not made preparations for their son to enter into any drug or alcohol courses, or counselling, but said that they would check out jobs for his return. Mr Webster senior told me that the probation service in Melbourne had spoken to them.
21.I also heard evidence from Ms Lena Sheeran, Mr Webster’s aunt, who is moving from Perth to Melbourne. She spoke in support of Mr Webster.
LEGISLATIVE CONTEXT
22.The relevant legislation in this matter is the Migration Act 1958 (the Act), and Direction No 41 on Visa Refusal and Cancellation under section 501 of the Act (Direction 41).
23.Section 501(1) states that the Minister may cancel a person’s visa if the person does not satisfy the Minister that he or she passes the character test. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record. Substantial criminal record is defined in section 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
24.Direction 41, which is made pursuant to section 499 of the Act, is applied if exercising the discretion where a person has been held to fail the character test in section 501 of the Act. In relation to the character test, events leading up to the date of the decision of the Tribunal may be taken into account (Shi v Migration Agents Registration Authority (2007) 235 CLR 286).
25.Having reviewed the offences with which Mr Webster has been charged, those of which he was convicted, and the sentences which followed (Exhibit R2), which far exceed the minimum contemplated in section 501(7) of the Act, I am satisfied that the Applicant does indeed not pass the character test.
26.I am mindful that the Objectives of Direction 41 as set out in paragraph 5.1(1) are to regulate, in the national interest, the coming into, and presence in Australia of non-citizens. Paragraph 5.1(2) states that:
In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
27.Direction 41 contains a number of primary considerations and other considerations to which the Minister, and therefore the Tribunal standing in his shoes, must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
28.The primary considerations in Direction 41 are set out in paragraph 10(1):
…
10. The primary considerations
1) In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
…
29.There are also a number of other considerations that, where relevant, must be taken into account in deciding whether the Minister’s decision to cancel Mr Webster’s visa should be affirmed, but, generally, in accordance with Direction 41, paragraph 11(1), they should be given less weight than the primary considerations. Both the primary considerations and other considerations are discussed in the paragraphs below.
PRIMARY CONSIDERATIONS
30.The relevant primary considerations in Mr Webster’s case are the protection of the Australian community, assessed by considering the seriousness and nature of his relevant conduct, and the risk that that conduct may be repeated. Also relevant is that Mr Webster was 16 years old, that is, a minor, when he first arrived, and began living in Australia, and the length of time that he had been ordinarily resident in Australia prior to engaging in criminal activity. I noted that Mr Webster first came before a Children’s Court in 2005 aged 16. The best interests of any relevant child or children, and any international obligations are not relevant in this case.
Protection of the Australian Community
31.The primary consideration, protection of the Australian community has been broken down into consideration of the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.
Seriousness and nature of the conduct
32.With regard to the seriousness and nature of Mr Webster’s conduct, I note that paragraph 10.1.1(1) states that Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community. A non-exhaustive list of offences and conduct are given in paragraph 10.1.1(2).
33.Unfortunately, only approximately eight months after arriving in Australia on 3 February 2005, Mr Webster, then aged 16, committed a serious criminal offence. The first incident was an aggravated robbery for which Mr Webster was issued with a community service order of 40 hours. Mr Webster said that he had been working, had money, mixed with the wrong types of people, and was drinking.
34.A list of Mr Webster’s other convictions follows from Exhibit R2, which is a document issued by the NSW Police:
CRT DATE COURT NAME CHARGE DATE CHARGE NO
STATUS OFFENCE SENTENCE
---------------------------------------------------------------------------
22/08/2007 CENTRAL LOCAL COURT 13/01/2007 H 28889970
EV 001 AFFRAY-T1 PERIODIC DETENTION: 4 MONTHSCOMMENCING 14/09/2007
19/03/2007 BATHURST LOCAL COURT 13/03/2007 H30084128
EV 001 DESTROY OR DAMAGE FINE: $200COSTS – COURT: $67PROPERTY <=$2000-T2
22/08/2007 CENTRAL LOCAL COURT 04/07/2007 H 30984731
EV 001 COMMON ASSAULT-T2 FINE: $300COSTS – COURT: $70EV 003 ENTER INCLOSED LAND FINE: $400COSTS – COURT: $70
NOT PRESC PREMISES W/O
LAWFUL EXCUSE
01/11/2007 PENRITH LOCAL COURT 10/10/2007 H 32408941
EV 001 BEHAVE IN OFFENSIVE FINE: $300COSTS – COURT: $70MANNER IN/NEAR PUBLIC
PLACE/SCHOOL
12/12/2007 DOWNING CENTRE LOCAL COURT20/11/2007 H 31895232
EV 001 SHOPLIFTING VALUE FINE: $400COSTS – COURT: $70<=$2000-T2
28/05/2008 PENRITH LOCAL COURT 13/05/2008 H 33504115
EV 001 DESTROY OR DAMAGE FINE: $1,000COSTS – COURT: $70PROPERTY <=$2000-T2
02/10/2008 PENRITH LOCAL COURT 9/09/2008 H 34836252
EV 001 DESTROY OR DAMAGE FINE: $900COSTS – COURT : $73PROPERTYBOND S9: 18 MONTHS SUPV NSW PROB SERVICE OBEY ALL REASONABLE DIRECTIONS FOR RELAPSE PREVENTION, ANGER MANAGEMENT, COUNSELLING, EDUCATIONAL DEVELOPMENT OR DRUG AND ALCOHOL REHABILITATION AND REPORT TO THE PENRITH PROBATION OFFICE WITHIN 7 DAYS.
EV 002 POSSESS SPRAY PAINT FINE: $500COSTS – COURT: $73
W/I TO DEFACE/DAMAGE
PROPERTY/PREMISES
25/09/2009 PARRAMATTA DISTRICT COURT20/10/2008 H 35558658
CV 002 ROBBERY IN COMPANY-SI IMPRISONMENT : 4 YEARS& 6 MONTHSCOMMENCING 201008 CONCLUDING 190413 NON PAROLE PERIOD WITH CONDITIONS: 2YEARS& 10 MONTHS RELEASE SUBJECT TO SUPV DRUG TREATMENT PROGRAM IF ELIGABLE, PSYCHOLOGY REPORT OF MICHELLE PLAYER CLINICAL PSYCHOLOGIST DATED 170909 BE PROVIDED TO CORRECTIVE SERVICES MATTERS TAKEN INTO ACCOUNT ON FORM 1: (AGD/JL 281109) (DNA/RT 59341) (DC 90014757) COURT CASE REFERENCE NUMBER 2009/131270
15/10/2009 PARRAMATTA LOCAL COURT 23/07/2008 H 34730671
CV 001 AFFRAY-T1 TAKEN INTO ACCOUNT ON FORM 1: ATPARRAMATTA DISTRICT COURT ON 250909 (DC 90014757)
35.As can be seen from Exhibit R2, Mr Webster was charged and convicted of five offences in 2007. Each resulted in a fine. He continued offending in 2008. On 29 September 2008, Mr Webster was charged with destroy or damage property, fined, and put on a bond. The Court also recommended anger management, counselling and educational development or drug and alcohol rehabilitation. Mr Webster’s evidence was that he had been drinking all day, and that the anger and offences had resulted from an argument with a girl.
36.Barely a month later, before he had commenced any of the recommended courses, and in breach of the court orders, Mr Webster was charged with, and convicted of robbery in company. The agreed facts indicated that Mr Webster and two co-offenders were in a taxi at approximately 7:30 pm on 20 October 2008. Whilst one of the others held the taxi driver in a choking fashion around the neck, Mr Webster punched him and stole money and cigarettes out of his pocket. Then, while the co-offender was punching the driver to the ground, Mr Webster stole more money and the keys out of the taxi. Mr Webster told me that he was travelling to a party, and had not intended to be involved in a robbery.
37.Mr Webster also pleaded guilty to a charge of affray which involved violence. Mr Webster received a prison sentence of four years and six months with a non parole period of two years and 10 months which he is currently serving. Mr Webster told me that he has only committed one offence, gambling, in gaol.
38.Judge Syme noted in her Honour’s sentencing notes dated 25 September 2009, that: The offender presents as a binge drinker with significant drug abuse issues. In reference to the psychologist’s report, her Honour stated: … there is some limited insight and limited remorse shown … The offender has a long way to go with respect to developing empathy and maturity…. If he does address his substance abuse issues there is a reasonable prospect of rehabilitation. I also note that this offender has a great deal of family support. Judge Syme told Mr Webster she would refer him to the Compulsory Drug Treatment Program.
39.As noted above, crimes involving violence or the threat of violence are of particular concern to the welfare and safety of the Australian community. Things did not improve over the years after Mr Webster’s arrival in Australia, and in fact his offending became more serious. That is of major concern to me in making this decision.
40.In considering the protection of the Australian community per Direction 41, I have dealt with the seriousness and nature of the relevant conduct by Mr Webster as discussed in the paragraphs above. There is no doubt that his offences have been serious, as reflected in the sentencing remarks of Judge Syme, and the custodial sentence her Honour imposed in 2009.
The above described serious offences militate strongly against Mr Webster remaining in Australia.
Risk of the conduct being repeated
41.I next moved to consider the risk of the conduct being repeated. Paragraph 10.1.2 of Direction 41 requires that in assessing the risk that the conduct may be repeated, consideration be given to Mr Webster’s previous general conduct, and total criminal history, and, in particular, to any recent history of convictions, evidence of rehabilitation, and evidence as to whether he has breached any judicial orders.
42.I note that Mr Webster’s criminal history is continuous, with early teenage offences in New Zealand, and demonstrates an increase in severity over time. He commenced using cannabis at age 11 in New Zealand and breaking and entering houses in order to obtain money to support his habit. I did not have further details of any convictions in New Zealand.
43.The first offence, of which Mr Webster was charged after arriving in Australia in February 2005, was eight months later. It was for aggravated robbery while he was still a minor. As can be seen from Exhibit R2, Mr Webster was charged and convicted of five further offences in 2007. Each resulted in a fine. He continued offending in 2008. On 29 September 2008 Mr Webster was charged with destroy or damage property, fined, and put on a bond. This was followed by his incarceration for robbery in company in October 2008, where a taxi driver was physically attacked and robbed.
44.As to recidivism; Mr Webster was not formally warned about the implications of his conduct on his immigration status until he received the Notice of Intention to Cancel his Visa.
45.I acknowledge from the evidence that Mr Webster has strong family support, and that his parents have given evidence that he can live with them, and that they will assist him to find work in Melbourne. However, I am also mindful that Mr Webster lived with his family for most of his life outside of gaol, and that that did not seem to have prevented him from committing crimes. It is clear his parents did not have control over his activities during the time he spent living with them, and that they were unable to keep him going to school. In fact the evidence of Mr Webster senior at the hearing was that his other children, a son aged 19 and a daughter aged 15 presently do not work, or attend school. He himself is in permanent part-time or casual employment, and was not in the work force for much of 2010 after moving to Melbourne in late 2009.
46.I have taken into account all the evidence and submissions. I am mindful that Judge Syme, who had the benefit of a psychologist’s report which I did not have, stated in sentencing Mr Webster that: this offender has a long way to go with respect to developing empathy and maturity. I am mindful also that in Mr Webster’s statement, which is Exhibit A4, he expresses remorse. I have also in the paragraphs above, listed courses Mr Webster has undertaken while incarcerated, the most significant perhaps being the four month course ‘The Gurnang Life Challenge Program’.
47.However, given the escalation of the severity of Mr Webster’s offences, the regularity with which he offended from arrival in Australia, and the fact he offended while on bail for an earlier offence, leads me to find that there is a strong risk of the conduct being repeated. There is no report or other evidence to convince me otherwise. This weighs strongly therefore against Mr Webster remaining in Australia.
48.I am satisfied from the evidence that paragraph 10.(1)(a), of the primary considerations, being the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes of violence, is likely to be compromised by Mr Webster, if he were to remain in Australia. That weighs strongly against him remaining in Australia.
Whether the person was a minor when they began living in Australia
49.The next primary consideration relevant in Mr Webster’s case relates to him being a minor when he first began living in Australia. Direction 41, paragraph 10.2(1) and (2) state:
(1)If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.
(2)Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.
50.I note that Mr Webster was approximately 16 years old when he arrived in Australia in February 2005. Accordingly paragraphs 10.2(1) and (2) are relevant as Mr Webster was close to attaining adulthood at that time. His attendance at school for one week in year 10 in Sydney, after which he left because he said he did not like it, indicated a lack of control by his parents, and his lack of commitment to educating and improving himself. Since his arrival, he has worked only for short periods between offending, and has continued with heavy drinking and some drug taking.
51.I have noted Mr Webster’s submissions, and those of his parents that he has family only in Australia, and that their only relatives in New Zealand are elderly. I noted further that a friend in New Zealand to whom the Applicant referred as an aunt, who cares for the youngest child of the Webster family is not in a position to offer Mr Webster accommodation with her. In fact Ms Reiwa told me that they have been asked for child support payments to assist her rear their youngest child.
52.I have noted that Mr Webster’s family is in Australia, and that they are supportive of him. His parents attended at the hearing, and his aunt, who is soon to move from Western Australia to Melbourne, spoke in his favour. Several supporters attended the hearing, and a petition signed by some 57 other people being mostly friends and family, is Exhibit A1.
53.I conclude that the fact that Mr Webster was close to attaining adulthood and had accordingly established ties to his home country before arriving in Australia, and that he offended within eight months of arrival in Australia while still a minor weigh against him remaining here.
Length of time ordinarily resident in Australia prior to engaging in criminal conduct
54.The third primary consideration relevant in Mr Webster’s case, that is the length of time he has been ordinarily resident in Australia prior to engaging in criminal conduct, is further explained in paragraph 10.3(1) of Direction 41. This states that more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.
55.As already stated above, Mr Webster arrived in Australia as a 16 year old in February 2005, having already offended in New Zealand, and within eight months of arrival, (by October 2005), he had unfortunately commenced with criminal behaviour in Australia. He was convicted in a Children’s Court in 2006 for aggravated robbery.
56.He did not attend school in Sydney and unfortunately, as indicated in the paragraphs above, Mr Webster’s criminal conduct continued, and escalated over the years.
57.The criminal conduct engaged in by Mr Webster at age 16, only eight months after arriving in Australia, and the escalating criminal conduct which followed, weigh against him remaining in Australia.
Relevant international obligations, including but not limited to:
(a) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(b) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
58.The best interests of the child or children is a very important consideration, but is not applicable in this case because Mr Webster does not have any children.
59.I accept Mr Webster’s evidence that he would miss his parents and the rest of his family, if he were not to be permitted to stay in Australia. His parents and his siblings would no doubt miss him too. I also accept his parents’ evidence that they would house him, and assist him to rehabilitate and find work if he were to be permitted to remain in Australia.
60.I have weighed up the seriousness and nature of the Applicant’s conduct, and his pattern of offending which indicates a strong risk of recidivism, and in considering the protection of the Australian community, I am satisfied that those considerations outweigh Mr Webster and his family’s wish that he remain in Australia.
61.There are no international obligations which weigh towards Mr Webster remaining in Australia.
OTHER CONSIDERATIONS
62.Direction 41 states that other considerations, where relevant, must be taken into account but, generally, should be given less weight than the primary considerations. Relevant considerations in Mr Webster’s case are his family ties, and the nature and extent of his relationships with those in the Australian community, his age, and his links with New Zealand.
63.Mr Webster’s family have told me they support their son, and I have discussed their situation in the paragraphs above. I am mindful that his family will miss him if he returns to New Zealand, and that most family members are in Australia. I have also noted that Ms Rewai provided a petition signed by some 57 family members and friends who support Mr Webster remaining. Some of those also attended at the hearing.
64.Mr Webster’s age and health can be taken into account in coming to a decision. I assume that Mr Webster is in good health as I have no information to the contrary. He is currently 23 years old, and will be able to work and make a new life for himself in New Zealand. While incarcerated, he has done courses in personal development, drugs and alcohol, bricklaying and blocklaying, and operating chain saws. He says that he likes outdoor work, and would like to work at tree felling. I accept from the evidence that he does not have immediate family in New Zealand, and would miss his parents who are in Australia, but note that in these times, electronic communications and the telephone are readily available, and given his stated resolve, if he stays with it, Mr Webster will make a new life for himself.
65.I am satisfied that these other considerations do not outweigh the primary consideration of the protection of the Australian community. I am satisfied that the protection of the Australian community would be compromised by Mr Webster remaining in Australia. I am not satisfied that Australia should bear the cost and the risk of him re-offending here.
CONCLUSIONS
66.I have concluded in the paragraphs above that Mr Webster does not pass the character test. I then moved to consider the discretion in Direction 41. My first task was to weigh up the primary considerations to which I am required to give greater weight.
67.Not surprisingly Mr Webster and his parents argued that he should be allowed to remain in Australia, while Mr Moloney contended that the primary consideration of the protection of the Australian community weighed heavily in favour of the cancellation of Mr Webster's visa. I have already considered both arguments and the submissions of both parties above.
68.On the evidence before me, including the sentencing remarks of her Honour Judge Syme, I am satisfied that the protection of the Australian community would be compromised if Mr Webster were to remain in Australia.
69.In terms of the relevant other considerations, to which I am required to give less weight, in my view, Mr Webster’s family ties in Australia are the most relevant of the other considerations in this case. The evidence is that the Applicant comes from a close family, and that they will suffer a sense of loss if Mr Webster returns to New Zealand. However, they can keep in touch by telephone and computer, and perhaps visit their son.
70.I am satisfied that Mr Webster does not pass the character test as a result of his substantial criminal record and his past and present criminal conduct. The primary consideration of the protection of the Australian community outweighs any hardship to the Applicant and his family such that the discretion in section 501 of the Act should not be exercised in the Applicant's favour. Having weighed up all the considerations, I am satisfied that the decision of the Minister to cancel Mr Webster’s visa should be affirmed.
DECISION
71.The Tribunal affirms the decision under review.
I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member.
Signed: ....[sgd].......................................................................
C. Taylor - AssociateDate of Hearing 20 June 2011
Date of Decision 30 June 2011
Applicant Self-represented
Solicitor for the Respondent S. Moloney, Clayton Utz
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