GDZY and Minister for Immigration and Border Protection (Migration)
[2017] AATA 692
•17 May 2017
GDZY and Minister for Immigration and Border Protection (Migration) [2017] AATA 692 (17 May 2017)
Division:GENERAL DIVISION
File Number: 2016/3382
Re:GDZY
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Brigadier AG Warner, Member
Date:17 May 2017
Place:Perth
The Tribunal affirms the decision under review.
........................................................................
Brigadier AG Warner, Member
CATCHWORDS
IMMIGRATION – mandatory visa cancellation – discretion to revoke – substantial criminal record – character test not satisfied – discretion to revoke visa cancellation if another reason – primary and other considerations – considerations weigh against revocation – decision under review affirmed
LEGISLATION
Migration Act 1958 – s 189 – s 499(2A) – s 501 – s 501(1) – s 501(3A) – s 501(6) – s 501(7) – s 501CA(4)(b)
Sentence Administration Act 2003 (WA) – s 5A(a)
CASES
Confidential and Commissioner of Taxation [2013] AATA 569
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – paragraphs 6.2, 6.3, 8, 13
REASONS FOR DECISION
Brigadier AG Warner, Member
17 May 2017
INTRODUCTION
On 3 February 2016, GDZY’s Class BF Transitional (permanent) visa was cancelled on the ground that he does not pass the character test within the meaning of s 501 of the Migration Act 1958 (the Migration Act) (T3/16-21).
GDZY seeks review in the Tribunal of a decision made by a Delegate of the Minister for Immigration and Border Protection (Delegate) on 24 June 2016 under s 501CA(4) of the Migration Act to not revoke the cancellation of GDZY’s visa.
GDZYattended the Tribunal hearing on 1 February 2017 and was legally represented.
BACKGROUND
GDZY was born in 1979 and is a citizen of New Zealand.
GDZY arrived in Australia in 1987 with his mother, step-father and siblings. He has spent the majority of his life in Australia, returning to New Zealand to live with his father between the ages of 15 and 21 (Exhibit 2 paras 3, 6).
On 27 June 2014, GDZY was convicted in the Supreme Court of Western Australia of two counts of criminal damage by fire and sentenced to a term of imprisonment of four years and six months T3/24-30).
On 3 February 2016, the Delegate mandatorily cancelled GDZY’s visa under s 501(3A) of the Migration Act (T1/1-3). After representations by GDZY, the Delegate was not satisfied that GDZY passes the character test and was not satisfied that there is another reason why the cancellation decision of 3 February 2016 should be revoked. Accordingly, the Delegate decided not to revoke the visa cancellation (T2/4-15).
GDZY was released on parole on 16 June 2016 (T14/143-145) and from that time has been in immigration detention.
ISSUE
On 27 June 2014, GDZY was sentenced to a term of imprisonment of four years and six months. It is clear, and there is no dispute, that GDZY has a ‘substantial criminal record’ and he does not pass the character test (Exhibit 2 para 32). There is also no dispute that on 24 February 2016, GDZY made representations seeking revocation of the mandatory cancellation of his visa (T3/38-44).
The issue before the Tribunal is whether there is any reason why the cancellation of GDZY’s visa should be revoked pursuant to s 501CA(4)(b) of the Migration Act.
RELEVANT LEGISLATION AND DIRECTION NO 65
Section 501 of the Migration Act deals with refusals or cancellations of visas on character grounds.
In order to consider GDZY’s application for review, it is necessary to determine whether the discretion to revoke the decision cancelling his visa is enlivened under s 501CA(4) of the Migration Act and, if so, whether it is appropriate to do so in the circumstances. Section 501CA(4) of the Migration Act provides that:
The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied;
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
When considering such matters, the Tribunal must apply directions issued by the Minister under s 499(2A) of the Migration Act. Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65) was issued by the Minister on 22 December 2014 and applies to the present application.
The character test is set out in s 501(6) of the Migration Act. Subsection 501(6)(a) provides that a person does not pass the character test if the person has a ‘substantial criminal record (as defined by subsection (7))’. Subsection 501(7)(c) of the Migration Act provides that a person has a ‘substantial criminal record if, among other things, the person has been sentenced to a term of imprisonment of 12 months or more’.
Pursuant to s 501(1) of the Migration Act, the Minister (or Tribunal upon review) may refuse to grant a visa to the applicant if an applicant does not satisfy the Minister that he or she passes the character test.
Subsection 501(7) of the Migration Act provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.
Once it has been determined that an applicant does not pass the character test because, for example, they have a substantial criminal record, the Tribunal must then determine whether to exercise its discretion conferred by s 501CA(4) of the Migration Act. The Tribunal must have regard to Direction 65.
Relevantly, paragraph 6.2 of Direction 65 provides general guidance for decision makers, as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
Paragraph 6.3 then outlines principles which inform the exercise of the Tribunal’s discretionary powers in relation to visa refusal and cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
For this matter, under paragraph 8(1) of Direction 65, the primary and other considerations set out in Part C must be taken into account. Primary considerations should generally be given greater weight than other considerations: para 8(4). Relevant independent and authoritative evidence must be given appropriate weight: para 8(2).
The primary considerations in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, as set out in paragraph 13(2) are:
a)Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian Community.
Detailed guidance in respect of these primary considerations is provided in paragraphs 13.1 to 13.3.
Paragraph 13.1 of Direction 65 requires decision-makers to “have regard to the principle that the Government is committed to protecting the Australian community from harm”, and requires that consideration be given 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.
Finally, paragraph 14 of Direction 65 outline the “other considerations” that may be relevant to the Tribunal when determining whether to exercise its s 501 discretion. They are:
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
Detailed guidance in respect of these other considerations is given in paragraphs 14.1 to 14.5.
EVIDENCE
The Tribunal had before it the following evidence:
·The “T Documents” (T1-T23, pp 1-175, Exhibit 1);
·Applicant’s Statement of Facts, Issues & Contentions dated 18 August 2016 (Exhibit 2);
·Applicant’s Supplementary Statement of Facts, Issues and Contentions dated 17 November 2016 (Exhibit 3);
·Respondent’s Statement of Facts and Contentions dated 27 September 2016 (Exhibit 4);
·Respondent’s Supplementary Statement of Facts, Issues and Contentions dated 14 December 2016 (Exhibit 5);
·Statutory Declaration – Applicant 15 August 2016 (Exhibit 6);
·Statutory Declaration – Ms A (including Annexes A-C) dated 3 October 2016 (Exhibit 7);
·Prosecution Notice dated 3 January 2014 (Exhibit 8);
·Report by Dr Sophie Davison dated 17 October 2016 (Exhibit 9);
·Affidavit - AEH Putt dated 16 October 2016 (Exhibit 10);
·Statutory Declaration – Ms B dated 7 October 2016 (Exhibit 11);
·Statutory Declaration – Mr C dated 8 October 2016 (Exhibit 12);
·Statutory Declaration – Ms D dated 7 October 2016 (Exhibit 13);
·Statutory Declaration – Ms E dated 9 October 2016 (Exhibit 14);
·Statutory Declaration – Mr F dated 9 October 2016 (Exhibit 15);
·Letter of Support – Mr G dated 6 October 2016 (exhibit 16);
·Statement – Mr H dated 7 October 2016 (Exhibit 17);
·Bundle of 35 pages under cover of Western Australia Police 1A 1317464 dated 25 August 2016 (Exhibit 18);
·Letter – Dr Raj Sekhon dated 12 October 2016 (Exhibit 19);
·Statutory Declaration – Ms I (Exhibit 20);
·Letter – Opal Specialist Aged Care, undated (Exhibit 21);
·Letter – Ms J received by Tribunal 1 February 2017 (Exhibit 22);
·The oral evidence of the Applicant;
·The oral evidence of Mr G;
·The oral evidence of Ms E;
·The oral evidence of Ms D;
·The oral evidence of Mr H;
·The oral evidence of Mr C;
·The oral evidence of Mr F;
·The oral evidence of Dr Sophie Davison; and
·The oral evidence of Ms I.
CONSIDERATION
Submissions on evidence
Exhibit 10 is an affidavit by Mr A Putt, GDZY’s legal representative in these proceedings, which supports GDZY’s assertion that GDZY’s offence of unlawful assault (for which he was fined $2,500 in the Joondalup Magistrates Court on 3 January 2014) should be considered at the lower end of the sentencing range. The Respondent contends that the Tribunal should be cautious in giving weight to the affidavit, stating: “Any attempt to cloak such an argument with the veneer of expert opinion from a patently non-independent source should be rejected” (Exhibit 5 para 8).
Before the Tribunal, Mr Blade objected to the acceptance into evidence of Exhibit 18, a bundle of documents provided by the Western Australia Police.
The Tribunal is not bound by the rules of evidence, and noted that any consideration given the respective evidence would have due regard to the submissions of the parties. In admitting the two exhibits, the Tribunal had regard to a relevant statement by Senior Member Fice in Confidential and Commissioner of Taxation [2013] AATA 569 at [61]: “However, given the greater flexibility which should be accorded to parties before the tribunal, I have admitted that evidence subject to giving it appropriate weight”.
General
A submission to the National Character Consideration Centre dated 24 February 2016 detailed the grounds of GDZY’s application to revoke the cancellation of his visa. In its considerations below, the Tribunal has regard to these grounds which are summarised as follows:
a)[GDZY] has served only one term of imprisonment, and was made eligible for parole (previous traffic and minor antisocial behaviour offences, and one aggravated unlawful assault for which received a fine);
b)At the time of offending [GDZY] had impaired mental functioning, which contributed to anger and lack of judgement;
c)He pleaded guilty at the first opportunity demonstrating acceptance of responsibility;
d)[GDZY] has resided in Australia since 1987, 1.e. since the age of 8 years old, and has been in full employment for most of that period;
e)The risk of further offending at time of sentencing was assessed as low to moderate (this was at the commencement of his sentence and before engaging in rehabilitation); and
f) Substantial efforts at rehabilitation whilst in custody (T3/39).
GDZY’s National Police Certificate shows the following offences and court outcomes:
Court Court Date Charges Result Supreme Court of Western Australia 27.06.2014
- Criminal damage by fire
- Criminal damage by fire
- 3 years concurrent
- 1 year and 6 months cumulative
- Total: 4 years and 6 months from 05.09.2013
Mandurah Magistrates Court 03.04.2014 No authority to drive – disqualified/suspended $400 fine
Mdl disqualified 9 months cumulativeJoondalup Magistrates Court 03.01.2014 Unlawfully assault and thereby did bodily harm with circumstances of aggravation; criminal code (WA); 317(1)(b) $2,500 fine Joondalup Magistrates Court 19.02.2013 Without lawful excuse trespassed on a place; criminal code (WA); 70a(2) $200 fine Joondalup Magistrates Court 14.01.2013
- Excess 0.05g/100ml
- Excess 0.05g/100ml
- No authority to drive – fines suspension
- 600 fine; mdl disqualified 6 months
- $600 fine; mdl disqualified 8 months concurrent
- $200 fine
Bunbury Magistrates Court 30.05.2012 Carried (possessed) an article with intent to cause fear; Weapons Act 1999; 8(1)(b) $800 fine Joondalup Magistrates Court 25.07.2005 Excess 0.05% $100 fine Primary Considerations
Nature and seriousness of conduct
GDZY’s criminal record is detailed above. GDZY submits, correctly, that: “The offences which were the main concern of the delegate were the two convictions for criminal damage by fire” (Exhibit 2 para 40). However, in assessing the nature and seriousness of GDZY’s conduct, the Tribunal cannot ignore the prior offences of aggravated unlawful assault against his then wife, and carried an article to cause fear. Relevantly, paragraph 13.1.1(1)(a) requires that: “decision-makers must have regard to the principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously.”
GDZY contends that the court considered the assault conviction involving his former wife to be at the lower end of the scale of offending because it was dealt with by a fine (Exhibit 2 para 41). Having considered the relevant evidence, including Exhibits 5, 10 and 18, the Tribunal is of the view that a fine of $2,500 is not insignificant, and that such a sentence does not diminish the seriousness of the domestic violence offence.
Commissioner Sleight makes clear the nature and seriousness of GDZY’s two arson offences by stating in his sentencing remarks on 27 June 2014 as follows:
…
As a result of a conversation you had with your mother, you became angry with your aunt and decided to drive to her house which was located in Port Kennedy.
I am satisfied that at some stage, either before leaving home or during the journey, you formed the intention to commit the offence of arson. At some stage, you acquired a container of petrol which was in the boot of your car. At the time you believed that your aunt’s husband was away and your aunt was at work. In fact, in the house was your aunt and her dog. You approached the house at about 8.00 pm and scattered petrol on the front door and window, and then set fire to the property.
This was a deliberate act of arson. It was not a spur of the moment decision, but rather a decision that was formed at the very least on the drive from Mandurah to Port Kennedy. An aggravating feature is that this was a vengeful attack on your aunt’s property with a total disregard as to the consequences and the dangers you created.
You then drove to the property of your ex-wife and her partner situated some distance away in Wanneroo. Once you arrived there, you again used petrol to set fire to a motor vehicle and a trailer owned by your ex-wife’s partner.
Again, this was a vengeful offence which was premeditated to the extent that you went to the property with the intent of committing arson (T3/26).
GDZY submits that the arson offences for which he was imprisoned were property offences and that no personal injury was intended, and that the offences occurred in circumstances of mental and emotional problems following the breakdown of his marriage (Exhibit 2 paras 38 and 42). The Tribunal accepts these submissions. However, it is clear that these factors were considered by the court, with Commissioner Sleight relevantly stating:
It is also in my opinion that it is important that a sentence be imposed which offers a clear personal deterrence to you. The offences committed by you were very serious. An aggravating feature is that they were deliberate acts, which were intended to cause damage to property, and that the motivation for committing the offences was one of anger towards the owners of the property. Offences of arson are considered serious offences, both because of the damage to the property, but also the risk to life which can occur. In this case, it was most fortunate, in relation to count 1 on the indictment, that the damage to your aunt’s house was not more severe, or that the occupier of the house, that is, your aunt, was not seriously injured or even killed (T3/29-30).
In concluding contentions related to the nature and seriousness of GDZY’s conduct, the Respondent stated:
Taking into account the nature of the offences, the comments of the court in sentencing together with the general Guidance and Principles set out in Direction No. 65, it is the respondent’s contention that the offences committed by the applicant weigh in favour of cancellation and do so to a significant degree (Exhibit 4 para 25).
The Tribunal is satisfied that the evidence supports the Respondent’s contention and agrees. It follows that the nature and seriousness of GDZY’s criminal conduct weigh against revoking the cancellation of his visa.
Risk to the Australian Community
In assessing the risk to the Australian community, the Tribunal has regard, cumulatively, to the harm to individuals or the Australian community should GDZY engage in further criminal or serious conduct.
The nature and seriousness of GDZY’s offending is considered in paragraphs 32 to 35 above. It is clear to the Tribunal that the Australian community should not be expected to tolerate any significant risk of similar reoffending.
In relation to risk, Commissioner Sleight stated at sentencing:
In my opinion, the risk of you reoffending still remains, at least moderate, in view of your continuing anger towards your family members, and the possibility that you may, on release, relapse into drug use and alcohol use. I take into account the content of the pre-sentence report, which says you have expressed remorse for your offending. I do not accept that there is any genuine remorse. Your behaviour since the offending indicates to the contrary, that you remain angry and vindictive towards your ex-wife and your aunt (T3/29).
Commissioner Sleight also stated:
It is clear that you maintain strong resentment towards your aunt and your ex-wife. In relation to the resentment towards your ex-wife, this is evident by the instructions that you gave to your solicitor to commence civil proceedings against her and obtain from her concessions concerning your behaviour (T3/27).
GDZY relies in great part on the report by Dr Sophie Davison, consultant forensic psychiatrist, in submitting that he presents a low risk to the community. Dr Davison opined:
…the likelihood of his reoffending is low in the current circumstances. The reason for this is that he is no longer depressed and has developed good coping skills. He has plans which incorporate good personal support, a stable place to live, and regular employment. Regular employment appears to have always been something which is very important to the stability of his mental state. He intends to stay off drugs, and his past record shows that he was able to do that in the past for several years, and started again when he was depressed and not coping. He plans to continue to see a Psychiatrist. He has responded very well to treatment, and if he stays well and stays off drugs and alcohol, he is unlikely to reoffend. He would benefit from some drug and alcohol counselling to assist him in preventing relapse. He plans to comply with any parole requirements to stay off alcohol (Exhibit 9 p 16).
Before the Tribunal, Dr Davison frankly conceded that GDZY had not been tested in the community as a consequence of his incarceration, the provisions of a parole order (T14/143-144) and his current immigration detention.
In the present considerations, the Tribunal has regard to the history and circumstances of GDZY’s substance abuse and his mental health issues. The Tribunal notes the court observation that GDZY had “engaged a psychiatrist in the months prior to the offending incident” (T3/28).
GDZY was released on parole on 16 June 2016 and his sentence maximum date is 4 March 2018 (T14/143-145). To his credit, GDZY successfully completed programmatic interventions with recorded treatment gains whilst in custody. These interventions should assist GDZY to live a prosocial life, whether that be in Australia or New Zealand. However, the Tribunal notes that the risk considerations in the present proceedings differ somewhat from the considerations of the Prisoners Review Board of Western Australia (PRB) in that the Tribunal’s considerations require a longer view. The Sentence Administration Act 2003 (WA) requires the PRB to take into account:
s 5A. Release considerations about people in custody
In this Act a reference to the release considerations relating to a prisoner is a reference to these considerations -
(a) The degree of risk (having regard to any likelihood of the prisoner committing an offence when subject to an early release order and the likely nature and seriousness of any such offence) that the release of the prisoner would appear to present to the personal safety of people in the community or any individual in the community.
…
Having carefully considered all the material before it, the Tribunal is unable to conclude that there is no risk of GDZY reoffending with associated risk to the Australian community. It follows that this primary consideration weighs against revocation of the cancellation of GDZY’s visa.
Best interest of minor children in Australia
GDZY does not have any minor children in Australia (Exhibit 2 para 51).
In her statutory declaration, GDZY’s sister, Ms D stated: “[GDZY] and I have always been very close and he is very involved in the lives of my two children” (Exhibit 13 para 4). Ms D was unable to expand on this statement before the Tribunal and there is no evidence that GDZY’s role as an uncle involved any responsibility for day to day care.
This primary consideration does not weigh in favour of revocation.
Expectations of the Australian community
Guidance on the third primary consideration, that of the expectations of the Australian community, is provided in paragraph 13.3(1) of Direction 65:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have regard to the Government’s views in this respect.
GDZY submits that this third primary consideration points in favour of revocation of his visa cancellation:
Paragraph 6.3(5) of the Direction states that Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a young age.
As the applicant has spent most of his life living in Australia from the time that he was 8 years old, it is submitted that the Australian community would show a higher level of tolerance towards his past criminal activity than they would to a non-citizen who has been participating in the Australian community for only a short period of time. Further, the community would take into consideration as a mitigating factor that although arson is a serious offence, the applicant’s intention was to damage the property of the victims, not to cause them injury (Exhibit 2 paras 53-54).
There is no dispute regarding the time GDZY has lived in Australia, and it is appropriate for the Tribunal to consider whether he should be afforded a higher level of tolerance towards his offending behaviour.
Having regard to the relevant evidence, the Tribunal concludes that the very serious nature of GDZY’s criminal damage by fire offences, the repeat drink-driving and no authority to drive offences, the assault on his wife and his protracted involvement with illicit substances constitute a breach of trust with the Australian community. The Tribunal is reasonably satisfied that the Australian community would find GDZY’s criminal conduct unacceptable, and it follows that this consideration weighs against revocation of the cancellation of GDZY’s visa.
Other considerations
International non-refoulement obligations
International non-refoulement obligations do not arise in this matter.
Strength, nature and duration of ties
Relevant to this consideration, GDZY submits:
Seven of the applicant’s immediate and extended family have declared their significant and enduring support for him, which demonstrates his strong ties to the Australian community. The applicant has plans that involve receiving excellent personal support and a stable, loving place to live. He also looks forward to undertaking regular employment with his sister [Ms D] and brother in law [Mr H] in their family business (Exhibit 3 para 17).
…
If the applicant were to be removed from Australia, it would have a direct impact on his family members who would suffer emotional hardship (T3, pp 88-93).
These submissions were confirmed by the supportive attendance of family members at this hearing, and the written and oral evidence before the Tribunal (Exhibits 11, 12, 13, 14, 15, 17, 20, 22).
Relevantly, the Respondent concedes that: “the applicant is likely to have strong ties to Australia, albeit not to the extent that they should outweigh the protection of the Australian community” (Exhibit 4 para 47).
The Tribunal accepts that some negative effect may arise for GDZY’s family if the mandatory cancellation of his visa is not revoked. Having regard to all the relevant information, the Tribunal concludes that considered in isolation, the strength, nature and duration of GDZY’s ties to Australia weigh in favour of revocation.
Impact on Australian business
Paragraph 12.4(1) of Direction 65 provides guidance that “an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”
GDZY was employed in Australia, stating in Exhibit 6: “In the period that I was free from drugs, I got married and started my own business installing fibreglass swimming pools”. He has potential employment with West Coast Jetties, a business owned by his brother-in-law for whom he worked for two years (T3/42). However, there is no evidence of business issues of the kind contemplated in paragraph 12.4(1) of Direction 65 that would weigh in favour of revocation of the visa cancellation decision.
Impact on victims
GDZY’s submissions addressing this consideration state:
It is accepted that the victims of the applicant’s criminal behaviour were traumatised and felt ongoing fear as a result of his actions. However, it is noted that the applicant has not had any direct or indirect contact with them since his offending (T3 p 42) and it is submitted that revoking the mandatory cancellation of the applicant’s visa would not detrimentally impact the victims (Exhibit 2 para 59).
…
…the risk that the applicant will interfere with the lives of the victims of his past offending or in any way cause them distress, should he be allowed to stay in Australia, is extremely low (Exhibit 3 para 22).
It seems to the Tribunal that these submissions must be contemplated in the context of GDZY’s incarceration, the protective conditions imposed by the Prisoners Review Board, and immigration detention. In his sentencing remarks on 27 June 2014, Commissioner Sleight stated:
The arson committed on your aunt’s property has caused her great fear, and psychological trauma. As a result of her anxiety arising from her terrifying experience of finding her house on fire, she was unable to continue work and she has suffered a profound change in her psychological wellbeing.
In relation to the offence committed against your ex-wife’s husband’s vehicle, this had an immediate financial result as he was unable to carry out a contract in the course of his occupation as he did not have a vehicle. The family has experienced financial hardships and remains extremely anxious about their safety as a result of your offending. They live in fear constantly and are uncertain as to whether they should live in their current house or change address because of the fear they face (T3/26-27).
Although Commissioner Sleight’s remarks were made almost three years ago, and GDZY has not been at liberty in the community during that period, his aunt’s more recent Statutory Declaration makes the impact of GDZY’s offending on her abundantly clear. Ms A’s sworn statement concludes:
I feel [GDZY] has raped and violated the very core of my secure and happy life I once had, and has made me feel vulnerable, exposed to harm and to seel psychological help when it was not needed before. I did not deserve this terrible crime to be committed against me I am terrified of the future that he will come back and harm either me or our family. I take this very serious considering he is an estranged family member. I am constantly living in fear of the malicious threats he has made and the potential of what he is capable of doing, and I verily believe he will carry out given the opportunity. This crime [GDZY] committed against me has affected me deeply and I have become very depressed, suicidal and struggled with feelings of lethargy. I have regular psychological counselling to cope with all the affects which I have mentioned and the impact this has had on my life (Exhibit 7 Annex A pp 4-5).
The Tribunal concludes that a decision to revoke the mandatory cancellation of GDZY’s visa would impact adversely on the victims of his offending to an unacceptable degree. It follows that this consideration of impact on the victims weighs against revocation.
Impediments if removed
Paragraph 14.5(1) of Direction 65 requires the Tribunal to take into account the extent of impediments that the non-citizen may face if returned to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country).
GDZY accepts that he would not encounter any cultural or linguistic difficulties in returning to New Zealand, but submits that the absence of strong family support could have a significant detrimental impact on his mental and emotional wellbeing (Exhibit 2 para 61). GDZY’s supportive father resides in New Zealand and GDZY indicated in a detention interview on 17 June 2016 that he would reside with his father should he return to New Zealand (T19/66). In his Statutory Declaration (and repeated before the Tribunal), Mr G expressed concerns regarding GDZY’s employment prospects in New Zealand, thus:
[GDZY’s] skill set is made for the Australian way of life and not suited for New Zealand. He is an outdoor pool maker and plasterer by trade and there is limited opportunity for this type of work in New Zealand. His certificates relate to the Australian building and safety codes. I believe Work and resettlement in New Zealand will be very hard to find and do (Exhibit 16).
The Respondent concedes that GDZY may experience some hardship on moving to New Zealand, but notes that GDZY’s work history in Australia suggests a capability to gain employment (Exhibit 4 para 55). The Tribunal agrees.
GDZY’s father, Mr G, told the Tribunal that he has has two brothers living in New Zealand, in Christchurch and Dunedin. GDZY’s mother, Mrs E, told the Tribunal that she was on a pension and had health issues, but returned to New Zealand with her husband last year on holiday. GDZY’s brother-in-law, Mr H, told the Tribunal that should GDZY be returned to New Zealand, he would get over to New Zealand whenever he could, perhaps every couple of years.
The Tribunal considers that Australia and New Zealand are broadly analogous in terms of language, heritage, culture and the provision of social, health and other public services. There is insufficient evidence to support a conclusion that the extent of impediments on GDZY’s removal from Australia weighs in favour of revocation of the non-revocation decision.
CONCLUSION
GDZY has a serious criminal record and does not pass the character test.
Having regard to all the evidence, and having weighed the primary and other considerations, the Tribunal concludes that there is no other reason to revoke the decision to cancel GDZY’s visa. Consequently, the Tribunal determines that the correct and preferable decision is to exercise the discretion to not revoke cancellation of GDZY’s visa.
DECISION
For the reasons outlined above, the Tribunal affirms the decision under review.
I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member
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Administrative Assistant
Dated: 17 May 2017
Date of hearing: 1 February 2017 Counsel for the
Applicant:Mr D Blades Representative for the
Respondent:Mr A Gerrard Solicitors for the Respondent: Australian Government Solicitor
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