Gage and Minister for Immigration and Citizenship

[2011] AATA 313

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 313

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/0815

GENERAL ADMINISTRATIVE DIVISION        )

Re             William Gage

Applicant

AndMinister for Immigration and Citizenship

Respondent

DECISION

TribunalMr RP Handley, Deputy President

Date11 May 2011

PlaceSydney

DecisionThe decision under review is set aside and a decision substituted that the discretion in s 501(2) of the Migration Act 1958 should be exercised in Mr Gage’s favour so that his visa is not cancelled.

………………[sgd]……………...

Mr RP Handley
  Deputy President

CATCHWORDS

IMMIGRATION – visa cancellation - character test – Direction 41 - substantial criminal record – primary considerations – protection of the Australian community – seriousness and nature of the conduct – risk that the conduct may be repeated – whether a minor when person began living in Australia – length of time ordinarily resident in Australia prior to engaging in criminal activity – other considerations - family ties, the nature and extent of any relationships – person’s age and health – links to the country to which they would be removed – hardship likely to be experienced by the person or their immediate family members – level of education - whether the person has been formally advised in the past of conduct that brought the person within deportation provisions – decision under review set aside

RELEVANT ACT

Migration Act 1958 (Cth): s 501

CITATIONS

Rosson v Minister for Immigration and Citizenship [2011] FCA 194

OTHER AUTHORITIES

Direction [no. 41] - Visa Refusal and Cancellation under section 501

REASONS FOR DECISION

11 May 2011 Mr R P Handley, Deputy President

1.      Mr Gage has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel Mr Gage’s visa on the ground that he does not pass the character test.

BACKGROUND

2.      Mr Gage was born in New Zealand in October 1987 and is a New Zealand citizen.  After eight days spent in Australia in October 2002, Mr Gage next arrived in Australia in October 2007, aged 19.  He departed in February 2008, returning on 24 September 2008 on a Class TY subclass 444 Special Category (Temporary) visa, which permits residence in Australia indefinitely, and he has remained in Australia since.

3.      The New Zealand Police have provided information that Mr Gage has one conviction in New Zealand, on 15 September 2005, for driving with more than the prescribed level of alcohol in his blood, for which he was fined and disqualified from driving for six months. 

4.      Mr Gage has committed a number of offences in Australia.  On 26 September 2008, he committed the offence of aggravated robbery.  He was arrested and charged on 9 October 2008 and subsequently released on bail.  On 9 October 2008, Mr Gage was also charged with resisting an officer in the execution of his duty in relation to his arrest.  On 1 May 2009, Mr Gage was convicted of driving with more than the prescribed concentration of alcohol in his blood, fined and disqualified from driving for three months.  On 29 August 2009, he was charged with the offence of ‘destroy or damage property’.  On 18 September 2009, he was convicted of this offence and fined $500. 

5.      On 13 May 2010, Mr Gage was convicted of the offence of aggravated robbery (committed on 26 September 2008) and sentenced to imprisonment for three years and six months with a non-parole period of 18 months to commence from 5 November 2009, so that the first day on which he will be eligible for release is 4 May 2011.  (However, I was informed at the hearing that Mr Gage’s parole hearing has been postponed until 14 May 2011.)  On 21 May 2010, he was convicted of resisting an officer in the execution of his duty (dating from 9 October 2008) but no penalty was imposed.

6.      An Immigration Report prepared for the Department of Immigration and Citizenship (the Department) by the Probation and Parole Service, Windsor District Office, on 11 October 2010 (the Immigration Report), states that Mr Gage had not incurred any breaches of discipline since coming into custody, has a stable work history, excellent reports regarding his attitude and behaviour, a positive outlook and realistic goals for his release.

7.      By letter dated 19 November 2010, the Department notified Mr Gage of its intention to consider cancellation of his visa and inviting him to respond.  Mr Gage responded on 16 December 2010.

8.      On 22 February 2011, a delegate of the Minister notified Mr Gage of the cancellation of his visa.  He received this notification on 28 February 2011 and, on 7 March 2011, he applied to the Tribunal for a review of the decision.

9.      Mr Gage’s parents provided the Tribunal with the letters of support for their son and gave evidence at the hearing.

RELEVANT LAW AND POLICY

10. Section 501(2) of the Migration Act1958 (Cth) (the Act) provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person 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 s 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.

11.     Mr Gage has been sentenced to a term of imprisonment of three years and six months for aggravated robbery.  Thus, he does not pass the character test.  It was therefore open to the Minister to cancel Mr Gage’s visa.  In exercising this discretion, the decision-maker must apply Direction [no. 41] - Visa Refusal and Cancellation under section 501 of the Act (Direction No 41).  Direction No 41 contains a number of ‘primary’ and ‘other’ considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.

12.     The primary considerations in Direction No 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).

13.     These considerations are elaborated on by a range of factors to which regard must be had.  There are also a number of ‘other’ considerations that, where relevant, must be taken into account but, generally, in accordance with Direction No 41 paragraph 11(2), they should be given less weight than the ‘primary’ considerations.  Those ‘other’ considerations are discussed below.

Primary Considerations

14.     The ‘primary’ considerations relevant in Mr Gage’s case are the protection of the Australian community, whether he was a minor when he began living in Australia, and the length of time that he was ordinarily resident in Australia prior to engaging in criminal activity.  There appear to be no relevant international obligations in his case. The relevant primary considerations are addressed below.

the protection of the australian community

15.     Direction No 41 identifies two factors relevant to this consideration: the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.

The seriousness of the conduct

16.     With regard to the seriousness of Mr Gage’s conduct, the Tribunal notes that paragraph 10.1.1(1) states:

Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community.

Among the examples of offences and conduct that are considered serious listed in paragraph 10.1.1(2) are offences involving grievous bodily harm, reckless injury, assault and aggravated assault and robbery.  Mr Gage has been convicted of a serious offence - aggravated robbery – for which he was sentenced to three years and six months imprisonment with a non-parole period of 18 months.  

17.     Paragraph 10.1.1(3) states that “The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community”, and regard must be had to the number and nature of offences, the period between offences and the time elapsed since the most recent offence.  Among the factors to be considered pursuant to paragraph 10.1.1(4) are any judicial comments made about the person, parole assessments and any relevant mitigating factors.

18.     Mr Gage has been convicted of two ‘drink driving offences’, one in New Zealand on 15 September 2005 and one in Australia on 1 May 2009.  The New Zealand conviction was for driving with more than four times the prescribed level of alcohol.  Mr Gage told me the Australian conviction was for breach of the ‘zero tolerance’ requirements for red ‘P’ platers, and that he had less than the low prescribed range of alcohol in his blood.  He said he had consumed two glasses of alcohol, believing wrongly that the requirements in Australia were the same as those in New Zealand.

19.     The most serious offence for which Mr Gage has been convicted is that of aggravated robbery.  He told me that two days after he arrived in Australia, he went out drinking with his cousin, Hayden Tewao, whom he had not seen for two years.  Mr Gage said he was still addicted to cannabis at the time and, not having had any cannabis for two days, he sought out a drug dealer at the hotel where he and his cousin were drinking from whom he could buy the drug.  The dealer sold him some cannabis but Mr Gage subsequently believed that the dealer had given less than he had paid for.  Mr Gage told his cousin of this while they were smoking cannabis outside the hotel.  They had been drinking all day and were under the influence of the cannabis.  Mr Gage said what happened was because of their “drunken and stupid minds”.  When they saw the drug dealer leaving the hotel, Mr Gage confronted him about this.  The dealer offered to have a ‘joint’ with them but then sensed something was wrong and “took off”.  Mr Gage’s cousin pursued him, forced him to the ground and assaulted him.  Mr Gage took the dealer’s wallet to get his money back.  He said that although he did not hit the drug dealer, he takes responsibility for what happened and expressed his remorse for the injury caused to the dealer and the effect on the dealer’s family and also on his own family and the community. 

20.     Mr Gage said he and his cousin were arrested for this offence two weeks later.  When he was approached by the police, without thinking he “took off” before lying on the ground and giving up.  It was in respect of this that he was charged with resisting an officer in the execution of his duty.  Mr Gage said that initially he was refused bail but, on his returning to court a week later, bail was granted.

21.     Mr Gage’s other conviction, on 18 September 2009, is for ‘destroy or damage property’.  He said that this arose out of an incident outside a hotel with his cousin on 29 August 2009 when Mr Gage was very drunk.  When he felt his left shoulder being grabbed by someone from behind, he turned and pushed back without realising that it was a security officer.  His cousin became angry and pulled a railing out of a walkway and threatened the officer.  Mr Gage said he was convicted of damaging property and fined $500.

22.     The Tribunal has been provided with a copy of the transcript of Acting Judge Madgwick’s remarks on sentencing Mr Gage for the offence of ‘aggravated robbery’ on 13 May 2010.  The Judge noted that Mr Gage and his co-offender and cousin, Mr Tewao:

… were both heavy drinkers and had experimented with alcohol and drugs in childhood long before their teens. They were confirmed drug addicts in relation to marijuana who also engaged in cocktail-like ingestion of drugs.

On the evening in question at the hotel where they had been drinking all day, they were both drunk and were likely affected by drugs as well. …

The pair went to the men’s lavatory where the prisoner [Mr Gage] bought a quarter of an ounce of marijuana [from the victim].

23.     Later, they saw the victim, a small scale drug dealer, in the hotel carpark.

Gage must have withdrawn at least momentarily to acquaint Tewao of his plan.  Tewao is a very big and I do not doubt strong young man and he supplied the force.  He approached the victim and battered his face.  He caused lacerations, swelling, a broken nose or bone and broke another facial bone, the orbital bone under the eye on the medial side.  The pair took the property charged as having been stolen.

24.     The stolen property comprised a wallet containing $400 in cash, a driver’s licence, various cards, a mobile phone and a set of keys.  The two offenders were arrested about two weeks later and made full admissions to committing the robbery.  (Mr Gage pleaded guilty.)  Once sober, they expressed remorse to probation officers and the Judge accepted their remorse as genuine.  The Judge described the suffering undergone by the victim as “substantial”: “All in all, this was a brutal bashing and robbery of a peaceful young man who had offered no provocation at all.” The crime was no less serious because the victim was a small scale drug dealer. 

25.     Acting Judge Madgwick noted that the two co-offenders are very close, having been brought up in the same house in New Zealand and thinking of themselves more as brothers than cousins.  Mr Gage left school after the equivalent of Year 11 and had worked in a variety of jobs including, after arriving in Australia, as a butcher in Kings Cross.  In explaining his decision as to sentence, the Judge said:

In each case special circumstances exist in my opinion for varying the prima facie ratio between the non-parole period and the additional term.  These special circumstances are to be found in a combination of the youth of each of the prisoners, their remorse, their prompt pleas of guilty, the fact that as young children effective intervention was not undertaken to get them out of the drug and alcohol ridden mess into which their situation had landed them, that there is rational hope for their rehabilitation, but that without very substantial and I should say quite intense rehabilitation over a much lengthier period than the prima facie additional term would provide the chances of rehabilitation of each of them is much reduced.  In my opinion each requires close supervision for a period of or closely approaching two years.

26.     With regard to mitigating circumstances, I note that Mr Gage became addicted to drugs and alcohol from a young age.  He said he started using cannabis with his friends at the age of about 10 and became addicted from the age of about 11, and was drinking heavily from the age of about 14.  If he went to a party, he would drink until he was “blind” drunk.  I also note from the Immigration Report prepared by the Probation and Parole Service that Mr Gage has no recorded breaches of discipline while in prison and that his attitude and behaviour were described as excellent.

27.     There can be no question that Mr Gage’s conviction for aggravated robbery, an offence involving violence, is a very serious one, albeit that Mr Gage was not himself violent.  This offence and his other less serious convictions are all associated with his abuse of drugs and alcohol. 

The risk that the conduct may be repeated

28.     With regard to the risk that the conduct may be repeated, paragraph 10.1.2 of Direction No 41 requires that consideration be given to Mr Gage’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 including bail and parole orders. 

29.     As mentioned above, the Immigration Report states that Mr Gage has not incurred any breaches of discipline since coming into custody.  Mr Gage told me that he no longer wants to use drugs or alcohol and his urine has been tested for drugs on three occasions while he has been in prison and has been found to be ‘clean’.  Mr Gage said he has completed a number of rehabilitation programs while in prison: a four‑week Young Adult Preparation Program in preparation for the four‑month Gurnang Life Challenge (Young Adult Offender) Program at Oberon Correctional Centre, which he has also completed.  Mr Gage described this program as very challenging.  It includes a 12‑step Alcoholics Anonymous (AA) program, a drug and alcohol program, and anger management, ‘Positive Lifestyles’ and ‘Managing Emotions’ programs. 

30.     The Immigration Report, prepared before he had completed this program, states that “Mr Gage has displayed excellent attributes that should help him to successfully complete all aspects of this program”.  Mr Gage said the program has helped him to understand the effect of his conduct on his victim, his family and the community and to feel empathy for his victim.  He has learned how to handle high risk situations and manage his emotions.  He has also learned to set goals for himself: he wants to stay off drugs and alcohol and lead a normal lawful life – get a job, help his family, do a further AA course, and volunteer as a youth worker to help young people with problems similar to those he has experienced.  He has gained skills while in prison but also hopes to go back to school to learn how to be a social worker. 

31.     The Immigration Report states that Mr Gage had “maintained a stable work history” since coming into custody and was reported to have “an excellent work ethic”.  Commenting on his attitudes, the Report states:

Mr Gage has a positive outlook and realistic goals for post release. He expresses remorse for his offences and appears to relate empathetically to his victim.

The offender appears to recognise the negative impact of his drug and alcohol use on himself, his victim and their families.  He further acknowledges that negative peer associations have also influenced his actions.  Mr Gage intends to form more positive peer associations with his move to Victoria and has intentions to further address his drug and alcohol issues when in the community through groups such as Alcoholics Anonymous.

32.     In a letter to the Department dated 14 December 2010, Mr Gage said this was his first experience of incarceration and his “criminal actions were those of a thoughtless and stupid young person, heavily under the influence of alcohol” which was also the reason for his other transgressions.  He said he has addressed and continues to address his addictive behaviour, and he went on to describe the programs he has completed while in prison referred to in the Immigration Report quoted above.  These include a ‘Drug and Alcohol Addiction Program’, and also a ‘Positive Lifestyles’ program run by the Salvation Army.

33.     Mr Gage told me that he has completed a number of job skills programs while in prison: he has an achievement award for hygiene operations including occupational health and safety in commercial cleaning, and NSW TAFE certificates for his ‘white card’ for warehousing and ‘blue card’ for logistics certifying his competency for transporting goods.  He hopes these additional skills and the support of his family will help him get a job on release from prison.  He said he already has a forklift licence, having worked in a warehouse in New Zealand for over a year.  He also worked for a over a year with his father on a removalist truck until the business was sold.  In Australia, he obtained an apprenticeship with a butcher in Kings Cross where he worked for about nine months until taken into custody.

34.     Mr Gage was asked why, while on bail, he had not undertaken the residential rehabilitation program recommended to him by the Probation and Parole Service (referred to by Acting Judge Madgwick).  Mr Gage said because his visa was issued on the basis of his being a New Zealand citizen, he was not entitled to claim social security benefits in Australia and, therefore, he could not apply to undertake the residential rehabilitation program even though he wanted to do so.  However, he said that he did attend AA meetings in Merrylands, not far from his home, about twice a week over a period of three to four months.

35.     Mr Gage said if he is released into the community he will live with his parents at Hoppers Crossing which, according to his father, is about 40 minutes drive from the centre of Melbourne.  (Mr Gage senior said that the Probation and Parole Service had visited their house and approved it as a suitable home for their son if he is released into the community.)  By living with his parents in Victoria, Mr Gage intends to avoid the negative influences associated with his time in Sydney.  The conditions of his parole are also likely to require that he not associate with his cousin Hayden. Hayden will be living with his family in Western Australia and Mr Gage will comply with this condition.  Mr Gage stated that his father, who is working as a truck driver in Melbourne, has made enquiries about his son working in a warehouse in Melbourne, and Mr Gage has also made enquiries about the possibility of working in a recycling plant in Melbourne.

36.     Mr Gage’s parents said they had relocated from Auckland to Australia specifically to provide support for their son, and I have no doubt from their evidence that they are loving, caring parents.  Mr Gage’s father has been in Australia since March 2010 and his mother since September 2010.  As noted above, Mr Gage senior is working as a truck driver in Melbourne.  Mrs Gage said she is not working currently, although she would like to do so.  However, her son comes first and she will be available to assist him with any rehabilitation program he undertakes including driving him to appointments.  Where they are living also has good access to public transport into the city of Melbourne.  Her view was that her son has much better prospects in Australia than if he has to return to New Zealand. 

37.     With regard to whether Mr Gage has breached any judicial orders, I note that Mr Gage was convicted of drink driving on 1 May 2009 and ‘destroy or damage property’ on 18 September 2009 while he was on bail in respect of the charge of aggravated robbery.  I note that his bail was not revoked in respect of these convictions and, it appears, he did not otherwise breach his bail conditions.

38.     In my view, while I accept that Mr Gage’s rehabilitation is currently untested in the community, the evidence indicates that he has made very significant and commendable progress towards rehabilitation.  With the support of his parents, and provided he can stay off alcohol and drugs, I am satisfied that the risk of his reoffending is low.  Thus, with regard to the first primary consideration - the protection of the Australian community – I am satisfied that he poses little risk to the community.

whether he was a minor when he began living in australia

39.     The second primary consideration relevant in Mr Gage’s case is whether he was a minor when he began living in Australia.  He was not a minor, being nearly 21 years of age, when he entered Australia on 24 September 2008.  In Rosson v Minister for Immigration and Citizenship [2011] FCA 194 (Rosson), at [21], Rares J said, in relation to this primary consideration, that a decision-maker was bound to have regard to this consideration by reason of cl 10(1)(b) of Direction No 41, and was entitled to take into account the fact that the person was not a minor when he or she first began living in Australia. Mr Rosson was aged 41 at the time. In Mr Gage’s case, while he was not a minor, the evidence suggests that he was relatively immature at the time he began living in Australia. In my view, this should therefore be treated as a neutral consideration.

length of time ordinarily resident

40.     The third primary consideration relevant in Mr Gage’s case - the length of time he has been ordinarily resident in Australia – is further explained in paragraph 10.3(1) of Direction No 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”. 

41.     Mr Gage first offended on 26 September 2008 after he had been in Australia for two days, and it was this offence – that of aggravated robbery – for which he was sentenced to three years and six months imprisonment. 

42.     Ms Cumming, for the Minister, referred to the decision in Rosson, at [23], where Rares J said that the fact that a person has been in Australia for a short period prior to offending could be treated as an unfavourable rather than a favourable or neutral consideration. In my view, because Mr Gage was only in Australia for two days before committing the offence of aggravated robbery, this second primary consideration should be treated as unfavourable to Mr Gage.

OTHER CONSIDERATIONS

43.     As noted above, Direction No 41 states that ‘other’ considerations, where relevant, must be taken into account but, generally, should be given less weight than ‘primary’ considerations.  Relevant ‘other’ considerations in Mr Gage’s case specifically referred to in the Direction are his family ties and the nature and extent of his relationships with those in the Australian community, his age, his health, his links with New Zealand, the hardship that may be experienced by both Mr Gage and his immediate family members in Australia, his level of education, and whether he has been formally warned in the past that his visa might be cancelled because of his criminal conduct.

44.     I note that in the Personal Details Form completed by Mr Gage for the Department on 25 November 2010, he stated:

I left my country because a gang back home wanted me to join.  After saying no they became very threatening and abusive towards [sic].  I was forced to leave my country. Australia is a beautiful country and I would very much like to stay.  All my family is located here.

45.     At the hearing, Mr Gage said members of his extended family in New Zealand belong to the Black Power gang, and members of the gang tried to recruit him from the age of 17 onwards.  He resisted this but is concerned that if he has to return to New Zealand, even if he relocates to a different area, they will find him and that if he has no means of support, this will be hard to resist.  Mr Gage said his current prison classification is ‘NA’ (Non-Association), meaning that he is segregated from other prison inmates.  He was classified as NA in October 2010 following his cousin having spoken to the Governor of Oberon Correctional Centre about arrangements being made for an inmate of Goulburn Correctional Centre being transferred to Oberon.  Mr Gage said the Black Power gang in New Zealand “has put out a hit on him” as a result of his inheriting some money from his ex-girlfriend’s deceased mother.  This ex-girlfriend is a member of the gang and the inheritance will pass to her if Mr Gage dies.  Mr Gage said he had received death threats over the last couple of weeks from other prisoners at the Correctional Centre near Windsor where he is currently being held.

46.     Ms Cumming provided me with Country Advice for New Zealand, dated 14 December 2009, prepared for the Refugee Review Tribunal in relation to criminal gangs in New Zealand.  This states that the Black Power gang is one of the two most prominent gangs in New Zealand and, while promoting brotherhood, is involved in serious violence and the selling and distribution of drugs.  The Country Advice indicates that while traditionally stronger in the North Island, these gangs now have chapters across the whole of New Zealand.  Estimates of gang membership vary and are said to be unreliable, but New Zealand Police appear to maintain a significant level of control over the gangs’ criminal activities.  Ms Cumming noted that Mr Gage had returned to New Zealand for six months in 2008 and suggested that his expressed fears for his safety from the Black Power gang were exaggerated. 

47.     I am not satisfied that I have sufficient reliable evidence to make a finding as to any threat to Mr Gage from the Black Power gang.  While it may be possible to minimise any threat by his relocating to another area in New Zealand, I am, however, satisfied that he does have genuine concerns for his safety, whether or not such concerns are justified.

48.     In his letter to the Department dated 14 December 2010, Mr Gage said if he is forced to return to New Zealand,

I will be left in a country in which I have no family support, no friends, no place to live, no ready work and be in a place that has nothing to do with who I am now.  Ultimately it may well place me in a situation where my chances of re-offending are heightened.

49.     As noted above, Mr Gage’s parents have now relocated to Australia to support their son.  Although they have not visited him in prison, they speak to him on the phone on most days and Mr Gage senior said he sends his son a little money when he can afford to do so.  Mr and Mrs Gage told me that they sold most of their assets in New Zealand, including their cars, before coming to Australia.  Their younger daughter is currently living in their house to the south of Auckland with her partner and new baby and using their furniture and will, hopefully, be able to sell the house in due course.  The daughter is planning to travel to Australia at Christmas to see if she likes it here with a view to moving.  The older daughter, who is living with her partner in Auckland, is awaiting back surgery before she is able to come to Australia.  Her former husband and their three children live in Brisbane. 

50.     Mr Gage senior said he relocated to Victoria because he was able to stay, at first, with his brother, and then with his aunt, until his wife arrived six months later, when they rented a house.  He also has an uncle in Australia.  He has two brothers and two sisters in New Zealand to whom he is quite close.  Mrs Gage said her only close family are her husband and children.  Her family in New Zealand are alcoholics and “do drugs”.  She paid for their son to travel to Australia to give him a chance to get away from all of that: there is nothing left for him in New Zealand.  Mr Gage senior said he gave up drinking alcohol six years ago and has not had any cannabis for more than a year.  He has to undergo random drug testing for his work as a truck driver. 

51.     As I have said above, Mr and Mrs Gage are loving, caring parents and I am satisfied that they moved to Australia to provide support for their son.  While it is open to them to return to New Zealand, and at this stage, they have not yet sold their house to the south of Auckland, they have established themselves in Australia and if they returned to New Zealand to support their son, it would cause them some hardship.

52.     I am also satisfied that to require Mr Gage to return to New Zealand would cause him some hardship although he still has two sisters in New Zealand, and an extended family, who may be able to provide him with some emotional even if not financial support.  In any event, his parents may decide to return to New Zealand if he has to return there.  If they do not do so, they will be able to maintain contact with their son via phone and other electronic means, and they will be able to visit him in New Zealand should they wish to do so.  Since Mr Gage has been in Australia for less than three years from his most recent arrival, there should be no difficulty in his reintegrating into the New Zealand community, in which the services are in most respects similar to those in Australia.  However, I note his concerns about possible threats to his safety from the Black Power gang.

53.     Mr Gage is relatively young – 23 years of age - and, apparently, strong and healthy.  Given his past work experience in New Zealand, there should be no difficulty in his finding suitable employment there.  There is no evidence to the contrary.

54.     Finally, I note that Mr Gage has not received any formal warning from the Department. 

55.     Weighing up the relevant ‘primary considerations’, I am satisfied Mr Gage’s release into the Australian community poses little risk.  He has made commendable progress towards rehabilitation and, provided he can avoid alcohol and drugs, the risk of his reoffending is low.  

56.     With regard to the second primary consideration, whether he was a minor when he began living in Australia, I have noted that although he was not a minor at that time, he was, at the age of 20, relatively immature.  I have therefore treated this as a neutral consideration.  The third primary consideration, the length of time he was ordinarily resident in Australia before engaging in criminal activity, is unfavourable for Mr Gage because he was only in Australia for two days before committing the offence of aggravated robbery.

57.     With regard to the ‘other considerations’, I accept that Mr Gage’s return to New Zealand would cause some hardship to both him and his parents, who have moved to Australia to provide support for their son.  On the other hand, Mr Gage should be able to reintegrate into the New Zealand community without great difficulty and, even if his parents choose to remain in Australia, his two sisters are there currently, as well as his extended family.  I have noted Mr Gage’s concerns about possible threats to his safety from the Black Power gang.  Lastly, I have also noted that Mr Gage has not received any formal warnings from the Department.

58. Having had regard to both the primary and other considerations, my overall conclusion, with particular regard to the low risk posed by Mr Gage to the Australian community when considered in the light of his excellent progress towards rehabilitation, is that the discretion in s 501(2) of the Act should be exercised in Mr Gage’s favour and that his visa should not be cancelled.

Decision

59. The decision under review is set aside and a decision substituted that the discretion in s 501(2) of the Act should be exercised in Mr Gage’s favour so that his visa is not cancelled.

I certify that the 59 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President.

Signed:   …………[sgd]..............................................................

A Veness, Associate

Date of Hearing:  3 May 2011
Date of Decision:  11 May 2011
Applicant representative:              Self-represented
Respondent representative:          J Cumming, Clayton Utz