Gerard Alan Kerr and Minister for Immigration and Citizenship

[2013] AATA 489

[2013] AATA 489

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/1977
Re	Gerard Alan Kerr
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	G. D. Friedman, Senior Member
Date	11 July 2013
Place	Melbourne

The Tribunal affirms the decision under review.

........................[sgd]................................................

G. D. Friedman, Senior Member

MIGRATION – United Kingdom - Cancellation of Spouse visa - Convictions for causing serious injury and other offences - Character test - Exercise of discretion

Migration Act 1958 ss 499(1), 499(2A), 501(2), 501(6), 501(7)

Direction [No. 55] – Visa Refusal and Cancellation under s 501

Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198

Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81

REASONS FOR DECISION

G. D. Friedman, Senior Member

11 July 2013

1. Gerard Kerr is a citizen of the United Kingdom who arrived in Australia on 26 September 2001 on a Class UD Subclass 976 Electronic Travel Authority (Visitor) visa.  He has been living in Australia since then.  On 19 December 2001 he was granted a Subclass 686 (Tourist (Long Stay)) visa and on 20 August 2004 he was granted a Class BS Subclass 801 (Spouse) visa.  On 12 April 2013 a delegate of the respondent found that Mr Kerr did not pass the character test due to his criminal record in Australia, and decided to exercise the discretion to cancel his visa.  Mr Kerr seeks review of that decision.

LEGISLATIVE BACKGROUND

1. Under s 501(2) of the Migration Act 1958 (the Act) the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that the person passes the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds in s 501(6)(a)-(d) is met. Section 501(6)(a) of the Act provides:

(a)       the person has a substantial criminal record (as defined by subsection (7));

…

1. Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

1. Under s 499(1) of the Act the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply.

1. On 25 July 2012 the Minister, exercising powers under s 499(1) of the Act, issued Direction [no.55] – Visa Refusal and Cancellation under s 501 (Direction 55) which came into operation on 1 September 2012.  The Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under s 501 of the Act, including the exercise of the discretion to decide whether a non-citizen should be permitted to enter or remain in Australia in circumstances where that person does not pass the character test.

1. Paragraph 7 of Direction 55 sets out how to exercise the discretion and paragraph 8 requires decision-makers to take into account the primary and other considerations relevant to the individual case.  Paragraph 8(4) of Direction 55 states that primary considerations should generally be given greater weight than the other considerations. 

ISSUES

1. The issues before the Tribunal are:

• Does Mr Kerr pass the character test? If not:

• How do the primary considerations and other considerations apply to Mr Kerr?

• Should the discretion to cancel the visa be exercised?

DOES MR KERR PASS THE CHARACTER TEST?

1. Mr Kerr has the following criminal history:

Court	Date	Offence	Court Result
Geelong Magistrates’ Court	31 July 2012	Recklessly Cause Serious Injury	Imprisonment for 6 months. 3 months of sentence to be served concurrently.
		Possess Controlled Weapon Without Excuse (3 charges)	On all charges: Imprisonment for 3 months.
		Theft of a Motor Vehicle
		Possess Ampahetamine
		Possess Ecstacy
		Deal Property Suspected Proceed of Crime (2 Charges)
		Theft (7 Charges)	On each charge: imprisonment for 1 month cumulative.
		Obtain Property by Deception (3 charges)	On each charge: Imprisonment for 14 days concurrent. Pay total compensation $59, 500.00
		Dishonestly Undertake In Retention of Stolen Goods (2 charges)
		Dishonestly Receive Stolen Goods (2 charges)
		Retention of Stolen Goods (2 Charges)
		Theft (4 Charges)
		Handle/Receive/Retention Stolen Goods
		Deal Property Suspected Proceed of Crime
		Possess Prohibited Weapon Without Exemption/Approval (2 Charges)	On each charge: imprisonment for 7 days concurrent.
		Possess Controlled Weapon Without Excuse
		Fraud Alter Identifying Number	Convicted. No penalty imposed.
Melbourne Magistrates’ Court	6 March 2008	Obtain Property by Deception	Imprisonment for 12 months concurrent. Pay compensation $34,635.94
Melbourne County Court	18 February 2008	Recklessly Cause Serious Injury	Imprisonment for 5 ½ years.
		Prohibited Person Use A Firearm
		Make Threat To Kill
Mildura Magistrates’ Court	27 April 2007	Breach Intervention Order.	Convicted. Fined $200.
		Possess Amphetamine.	Convicted. Fined $150.
Bathurst Local Court	29 January 2007	Possess Prohibited Drug (2 Charges)	On each charge: to perform 200 hours community service work.
		Goods in Personal Custody Suspected Being Stolen (4 Charges)
		Make False Instrument With Intent (2 Charges)
		Use False Instrument With Intent
		Possess/Attempt to, Prescribed Restricted Substance	Fined $200.
		Larceny	On each charge: fined $100.
		Make U-turn At Intersection With Traffic Lights
Downing Centre Local Court	14 November 2006	Enter Inclosed Land Not Prescribed Premises Without Lawful Excuse	Without Conviction. No further penalty imposed.
Mildura Magistrates’ Court	19 April 2006	Unlawful Assault	Convicted. Fined $1000.
Mildura Magistrates’ Court	7 October 2005	Unlawful Assault (2 Charges)	Without conviction. Adjourned to be of good behaviour until the 29 August 2006.

1. Mr Kerr is currently serving his sentence of imprisonment and will be eligible for parole in July 2013.  He conceded, and the Tribunal finds, that he does not pass the character test.

HOW DO THE PRIMARY AND SECONDARY CONSIDERATIONS APPLY TO MR KERR?

Assessment of primary considerations

1. The four primary considerations are set out in paragraph 9(1) of Direction 55:

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

(b)       The strength, duration and nature of the person’s ties to Australia;

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

(d)       Whether Australia has international non-refoulement obligations to the person.

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

1. Paragraph 9.1(1) of Direction 55 states that, when considering the protection of the Australian community, decision-makers should have regard to the principle that:

... the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

1. Paragraph 9.1(2) states that decision-makers should also give consideration to:

a) The nature and seriousness of the person’s conduct to date; and

b)    The risk to the Australian community should the person commit further offences or engage in other serious conduct.

a) The nature and seriousness of Mr Kerr’s conduct

1. Paragraph 9.1.1(1) of Direction 55 lists a number of factors that must be taken into account in considering the nature and seriousness of the criminal offending or other conduct to date:

a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously.

1. In his sentencing remarks in the County Court of Victoria on 18 February 2008 in relation to the charges of recklessly causing serious injury, making a threat to kill and carrying a registered firearm as a prohibited person, Judge Bourke noted that on 5 November 2005 Mr Kerr had been in a relationship with the victim, who was pregnant with Mr Kerr’s child.  Mr Kerr and the victim were in a motor vehicle and were arguing about the victim’s drug use.  She jumped out of the car and asked the driver of a parked car for assistance, claiming that Mr Kerr was trying to kill her.  Mr Kerr then grabbed the victim by the hair and pulled her to the ground, where he punched and kicked her in the head and body, causing a fractured jaw, numerous broken teeth, bruising and psychological injuries.

1. The Judge added that ultimately Mr Kerr had a good understanding of the serious nature and consequences of his loss of control.  He said that Mr Kerr’s moral culpability (despite drug use and distressed emotional state) remained significant.  Other crimes involving violence include recklessly causing serious injury (July 2012) and unlawful assault (April 2006 and October 2005).  

b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

1. The assault resulting in the 2008 conviction was an uncontrolled vicious attack on a weaker, vulnerable individual, made worse by the fact that the victim was pregnant and that Mr Kerr was in possession of a firearm and ammunition. 

c) Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

1. Mr Kerr has not been placed in immigration detention as he is still serving his sentence of imprisonment.

d) The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s501(6)(b) or (d), or is not of good character under s501(6)(c) is considered to be serious;

1. Mr Kerr’s conduct in committing the crimes is serious.

e) The sentence imposed by the courts for a crime or crime;

1. In respect of the more serious offences Mr Kerr was sentenced on 18 February 2008 to imprisonment for five and a half years, with a minimum of three and a half years, and on 31 July 2012 to imprisonment for 6 months on a range of charges including recklessly cause serious injury, possession of drugs, theft and multiple charges of dishonesty.  The most recent offences resulted in a breach of parole conditions, and Mr Kerr has remained in gaol.  In July 2013 he is being considered for parole. 

f) The frequency of the person's offending and whether there is any trend of increasing seriousness;

1. Mr Kerr commenced offending in 2005, about four years after his arrival in Australia.  The seriousness appears to have increased since then.  He has served more than one term of imprisonment.

g) The cumulative effect of repeated offending;

1. Mr Kerr’s latest Court appearance in July 2012 continued a pattern of violent offending that has resulted in terms of imprisonment.

h) Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

1. There was no record of disclosure of past offending when Mr Kerr first sought to enter Australia, and he did not disclose prior criminal convictions on his Incoming Passenger Card.  In March 2002 Mr Kerr obtained a UK Police National Computer records check for the purposes of his spouse visa application in the name of Gerard Paull, and no convictions were noted.  However, as acknowledged by the County Court on 18 February 2008, Mr Kerr has prior criminal convictions in the United Kingdom in the 1990s, and these involved assault or threatening behaviour.  

i) Whether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person’s migration status (noting that the absence of a warning could not be considered to be in the person's favour);

1. On 30 June 2010 Mr Kerr received a formal warning from immigration authorities that further criminal activity could lead to the cancellation of his visa.  In reply he said that he had undertaken rehabilitation courses, including a violence intervention program, and would not be engaging in any further criminal activity.  He gave an assurance that he would pose no future risk to any person or institution.  Despite this, he re-offended in 2012 resulting in multiple convictions on 31 July 2012 for serious offences.

j) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

1. All relevant offences were committed in Australia.

Conclusion regarding the seriousness of the offences

1. The Tribunal concludes that the offences are very serious. 

b) The risk to the Australian community should Mr Kerr commit further offences or engage in other serious conduct

1. Paragraph 9.1.2 of Direction 55 states:

(1) In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must have regard to, cumulatively:

a) The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct;

1. Taking into account the nature of the prior convictions for offences involving violence against innocent members of the community, the Tribunal finds that there would be significant harm to individuals or the Australian community should Mr Kerr engage in further criminal or other serious conduct.

b) The likelihood of the person engaging in further criminal or other serious conduct, taking into account:

i. information and evidence on the risk of the person reoffending; and

ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

1. In a written statement dated 24 February 2010 Mr Kerr stated that while in prison following his sentencing on 18 February 2008 he completed a Moderate Intensity Violence Intervention Program and drug and alcohol programs to address his violent behaviour and had gained insight into the effect of his drug use on violent offending.  He assured the Department of Immigration and Citizenship (the Department) that he would not be engaging in any further criminal activities or behaviour and would pose no future risk to any person or institution.  In further statements dated 14 and 21 March 2010 he said that psychological issues and medication had been addressed as far as possible during this time.  He emphasised in his statement that the welfare of his then partner and their child was a significant incentive to remain out of trouble.             

1. In January 2013 Mr Kerr responded to the Notice of intention to consider cancelling a visa and stated that he pleaded guilty to all theft and stolen goods charges heard on 31 July 2012 in the Geelong Magistrates’ Court to protect his partner, although he admitted that he committed some of the offences.  He also said that the assault charge resulted from his actions in defending his partner against a sexual assault by the victim, although he agreed that he had to take responsibility for his actions.  Mr Kerr emphasised that he has been taking medication for his psychological conditions and has undergone counselling, and said that medical staff believe that his offending was related to his untreated conditions.  He noted that he has completed a number of drug and alcohol programs while in prison and was remorseful for his actions.  He said that he would be vigilant to ensure that he could remove himself from situations that might result in further criminal or other serious conduct.         

1. In a written submission dated 27 June 2013 Mr Kerr referred to a report dated 13 December 2012 from Caraniche Drug and Alcohol Services which stated that he had completed a Semi-intensive Drug and Alcohol Treatment Program and had gained insight into the complexities of his underlying issues and their impact on his past choices and behaviours.  The report recommended ongoing community support and therapeutic treatment in a safe environment.  Mr Kerr stated that he is psychologically and psychiatrically in good health because he is now taking the appropriate medication, is drug-free, has community support, has four children in Australia and good employment prospects, which he said demonstrate substantial changes in his life and show that he is unlikely to re-offend.  He referred to documents from Corrections Victoria in May 2013 which described him as being at a low risk of re-offending.         

1. In a letter of support dated 8 February 2013 Ms T Stewart said that she met Mr Kerr in mid-2011 and that they are extremely close.  They plan to marry as soon as possible.  She acknowledged her role in the most recent offences involving stolen goods, but stated that both she and Mr Kerr were experiencing serious emotional and other issues at the time.  She said that she believes Mr Kerr has no intention of re-offending because they both realise the consequences to themselves and to her family members, whom she said have supported the relationship.  In a further letter dated 23 May 2013 Ms Stewart stated that Mr Kerr is not a violent person and that his conviction in July 2012 for recklessly causing serious injury was out of character because he was defending her against a sexual assault by a drunken man at a hotel.  Ms Stewart told the Tribunal that Mr Kerr has worked diligently to rehabilitate himself while in gaol by participating in drug and violence education programs and addressing mental health issues.  She said that she is confident that he will not re-offend.

1. In a letter of support dated 13 May 2013 Mr Kerr’s former partner and mother of his youngest child described Mr Kerr as …trustworthy and honest with a decent set of morals.  She said that his most recent offending was in the midst of a desperate time in his life, and that if given another chance he will not re-offend because he has so much to lose.   

1. Mr R Cooper stated in a letter dated 5 May 2013 that he employed Mr Kerr between 2010 and 2012 as a labourer and an installer of security systems.  He considered Mr Kerr to be honest, reliable and punctual.  He said that he believes that the issues which resulted in Mr Kerr’s imprisonment were a one-off occurrence which will not happen again.  Ms L Picone stated in a letter dated 17 May 2013 that Mr Kerr had helped her and her partner with accommodation and guidance over the past two years.  She described him as generous, caring and loving, and stated that his recent imprisonment resulted from a low point in his life.  Mr K Cooper stated in an undated letter that he has known Mr Kerr as a friend and neighbour for more than ten years, and described him as honest, reliable and committed to his family.  He said that Mr Kerr is a genuine, caring person who is always willing to help others.  Ms E Timms stated in a letter dated 17 May 2013 that she has known Mr Kerr for a number of years and that he has demonstrated personal traits such as honesty, loyalty, compassion and is hard-working.  She said that Mr Kerr has learnt from his mistakes and has a new and respectable outlook on life that will enable him to become a worthy citizen of Australia.  Ms L McEwan stated in a letter dated 17 April 2013 that Mr Kerr worked previously for her company and proved himself to be of good character, reliable, honest and a genuine hard worker.          

1. In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81 Davies J held that even if the risk of recidivism is not high, it will strongly support deportation (or visa cancellation) when recidivism, if it does occur, may cause great harm.  In Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198 the Full Court of the Federal Court held that a real risk of recidivism is one that is not far-fetched or fanciful, and can include a low or minimal risk.

1. The Tribunal takes into account the contents of the letters of support, the documents from Corrections Victoria and Mr Kerr’s expressions of remorse for his most recent criminal activities.  He has completed a number of rehabilitation courses while in gaol for the current and past offences, and is taking medication which he says is appropriate and which has resulted in stability of his mental health issues.  He said that his partner of two years has been a positive influence and is supportive of him.  He does not wish to jeopardise his relationship with his youngest child, and has sound employment prospects.

1. However Ms Stewart was not able to prevent him from re-offending, and she had some involvement in the commission of the latest offences.  Mr Kerr has a pattern of offending which has not changed significantly and has included violence, despite imprisonment and despite undertaking courses and programs designed to control his behaviour.  As early as 2008 he gave assurances that he would not re-offend, and on a number of occasions has claimed that his expressions of remorse, his drug-free state and his employment record, together with his relationship with his then partner and their child, were motivating factors to deter re-offending, but he later committed a large number of serious offences involving violence, dishonesty and drugs, resulting in further imprisonment.  In 2010 he was warned by the Department about the consequences of re-offending and gave further assurances that he would not be engaging in any criminal conduct, but he has committed serious offences since then. 

1. Mr Kerr has breached numerous promises to Courts and the Department that he would not re-offend.  On the basis of all the material, the Tribunal finds that his risk of re-offending is at least moderate.This, together with the finding that the offences and the nature of his conduct are extremely serious, leads the Tribunal to conclude that the first primary consideration weighs strongly in favour of cancellation of the visa.

(b) The strength, duration and nature of the person’s ties to Australia;

1. Paragraph 9.2.1 of Direction 55 states that the decision-maker must have regard to the following:

a) How long the person has resided in Australia, including whether the person arrived as a young child, noting that:

i. Less weight should be given where the person began offending soon after arriving in Australia; and

ii. More weight should be given to time the person has spent contributing positively to the Australian community

1. Mr Kerr was born in the United Kingdom and arrived in Australia on a visitor visa when he was aged 27 years.  He has been in this country for more than eleven years and his formative years were not spent in Australia.  His first Court appearance occurred four years after his arrival and he has continued to re-offend, spending about five years in gaol.  Mr Kerr said that he has contributed positively to the Australian community by holding responsible positions of employment and operating his own business.  

b) The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

1. Apart from his four children Mr Kerr has no relatives in Australia.  Ms Stewart stated that she and her family are supportive of him.  The mother of his youngest daughter has also expressed support, describing Mr Kerr as a colourful and creative character.         

1. On the available material the Tribunal concludes that Mr Kerr has some ties to Australia, having lived here for nearly twelve years, having a partner of two years’ duration, four children and some vocational links to Australia through previous employment and business connections. However, there has been little contact with three of the children and Mr Kerr has been incarcerated for lengthy periods since 2007 when he was remanded in custody prior to his sentencing in 2008.  His ability to contribute positively to the Australian community has been limited in recent years by his lengthy incarceration. 

1. In all the circumstances this primary consideration weighs neither in favour of, nor against, cancellation of the visa.

(c) The best interests of minor children in Australia

1. Mr Kerr told the Tribunal that there are four minor children in Australia whose best interests will be significantly affected by the cancellation of his visa.  He was married in 2002 and has two children of the marriage: a daughter born in 2002 and a second daughter born in 2004.  The marriage ended in divorce in 2007, and Mr Kerr has had little or no contact with the children since then.  He told the Tribunal that he decided that the children’s best interests would not be served by seeking involvement in their lives at present.  Mr Kerr has a son born in 2006 from his relationship with the victim of the offences for which he was sentenced in 2008, and he has had no contact with the child for several years, although he said that he has communicated with the child’s mother and hopes to renew contact with the child at an appropriate time.  He stated that, despite his limited contact with these children, they may in the future wish to initiate contact with him and it is important that he be available in Australia for this to occur.

1. Mr Kerr has a daughter born in 2007 from a former relationship, and told the Department in January 2013 that he plays an active role in the child’s life and supports her financially.  He said that he is a good father to her, despite his incarceration for much of her life, although he conceded that he has not been a good role model.  He said that he is on cordial terms with the child’s mother, who facilitates regular contact with the child by telephone and mail.  Mr Kerr stated that the child’s mother has a potentially fatal medical condition, and he said that he is concerned that the child would have no-one to look after her in the event of the mother’s absence.  Mr Kerr said that he and the child’s mother agreed that the child would not visit him in prison, and the child has been told that he is working some distance away.

1. In her statement to the Tribunal the child’s mother described Mr Kerr as a dedicated and loving father who is a positive influence on the child, providing substantial financial and emotional support.  She stated that the effect on the child of Mr Kerr’s removal from Australia would be devastating and would destroy the father/child relationship.  She emphasised that her medical condition and a lack of financial resources would prevent her from taking the child to the United Kingdom to visit him if he is forced to leave.  Ms Stewart stated that Mr Kerr is a dedicated and devoted father to the child and loves being involved with all aspects of her life, including her emotional and financial needs.  She said that the damage to the child that would flow from his removal from Australia would be irreversible.        

1. The Tribunal takes into account that Mr Kerr has expressed a desire to play an important role in his youngest child’s life, although there has been only a brief period of contact between 2010 and 2012 when he has not been in gaol.  The Tribunal takes into consideration the evidence by Ms Stewart and the child’s mother that Mr Kerr has provided financial and emotional support to the child and her mother.  Future contact with the child depends on the continuing goodwill of the child’s mother.  Notwithstanding that Mr Kerr wishes to remain a part of the child’s life, his history of drug abuse, criminal offending and significant periods of incarceration cast some doubt on his ability to assume a more prominent role in the child’s life.  There would be an impact on the child if Mr Kerr is removed because physical contact could not continue.  Similarly any contact with the other children would be minimal, although Mr Kerr has had little or no contact with them for several years.  Nevertheless on balance the Tribunal finds that this primary consideration weighs against cancellation of the visa.

(d) Whether Australia has international non-refoulement obligations to the person.

1. Paragraph 9.4(1) of Direction 55 states:

In cases where claims which may give rise to international non-refoulement obligations [relating to returning persons who may face risks of a type set out in various international treaties] are raised by the person or are clear from the facts of the case, they must be given consideration if the person is in Australia.

1. Mr Kerr did not make any claims which require assessment in relation to Australia's international non-refoulement obligations, although he referred to United Nations treaty obligations concerning protection of and assistance to children deprived of family members.  The Tribunal finds that this primary consideration weighs neither in favour of, nor against, cancellation of the visa.

Assessment of other considerations

1. Paragraph 10(1) of Direction 55 provides a list of non-exhaustive other considerations that must be taken into account where relevant:

a) Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;

1. Mr Kerr acknowledged that, apart from his children, he has no family in Australia, but he told the Tribunal that he has made a life for himself in Australia after living here for nearly twelve years.  He stated that he and Ms Stewart are inseparable and have a sound and solid relationship that will lead to marriage and children when he is released.  He explained that she is suffering financially and emotionally because of his incarceration.  The Tribunal accepts that Ms Stewart has visited him and spoken to him regularly by telephone during his most recent period of imprisonment, and that their relationship is ongoing.  Ms Stewart said that her employment and family in Australia represent the only life she knows, but she would be prepared to re-locate to the United Kingdom if Mr Kerr is removed from Australia.  In these circumstances the Tribunal concludes that, in addition to the adverse effect on Mr Kerr’s youngest child, cancellation of his visa would have an adverse effect on Mr Kerr’s partner living in Australia as it would upset her stable lifestyle, but that the impact would be lessened by her willingness to move overseas to be with him.

b) Impact on Australian business interests

1. There does not appear to be any impact on Australian business interests of cancellation of Mr Kerr’s visa.

c) Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;

1. A decision not to cancel Mr Kerr's visa may have an adverse impact on members of the Australian community, including victims of his criminal behaviour and family members of victims, who might fear that he would re-offend.

d) The extent of any impediments that the person may face if removed from Australia 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) taking into account:

i. The person’s age and health;

ii. Whether there are substantial language or cultural barriers; and

iii. Any social, medical and/or economic support available to them in that country.

1. Mr Kerr told the Tribunal that he would face extreme impediments if removed to the United Kingdom because his only close relative in that country is a stepsister with whom he has not spoken for many years, although he has written to her recently.  He also has extended family in the United Kingdom but has had no recent contact with them.  He said that he would be homeless and destitute with severe psychiatric conditions, and would be unlikely to obtain employment.

1. The Tribunal takes into account that Mr Kerr has lived in Australia for almost twelve years.  He is now aged 39 years and has psychiatric conditions that require medication and other treatment and would face challenges in beginning a new life in the country that he left at the age of 27 years.  However he has trade qualifications in automotive engineering and employment skills as a diesel mechanic, together with experience in the demolition and security industries that should be readily transferable.  He is familiar with the United Kingdom’s culture and society, and there would be no language or cultural barriers facing him if he was to return there.  His partner has agreed to re-locate to the United Kingdom to be with him.  Basic social, medical and economic support available to other United Kingdom citizens, similar to the Australian system, would apply to him, and the medication that he says is appropriate for his mental health issues would be available.  On balance, the Tribunal finds that Mr Kerr would not face significant impediments in establishing himself in the United Kingdom.

Conclusion regarding other considerations

1. The Tribunal accepts that, in addition to the adverse impact on Mr Kerr’s youngest child if Mr Kerr is removed from Australia, there would be some adverse emotional and financial impact on his partner, who has agreed to give up her stable lifestyle to re-locate to the United Kingdom.  However at the age of 39 years and with his partner’s support Mr Kerr would be able to establish a new life in the United Kingdom.  The Tribunal concludes that the other considerations weigh neither in favour of, nor against, cancellation of the visa. 

SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?

1. The Tribunal has concluded that the first primary consideration concerning protection of the Australian community weighs strongly in favour of cancellation, and the second primary consideration concerning Mr Kerr’s ties to Australia weighs neither in favour of, nor against, cancellation.  The third primary consideration concerning the interests of minor children weighs against cancellation and the fourth primary consideration concerning international obligations weighs neither in favour of, nor against, cancellation.   

1. The Tribunal has concluded that the other (not primary) considerations weigh neither in favour of, nor against, cancellation, and the Tribunal takes into account that, generally, other considerations should be given less weight than that given to primary considerations.

1. After taking all of the primary considerations and the other considerations into account the Tribunal finds, particularly in respect of the seriousness and violent nature of the offences, Mr Kerr’s offending history and the risk of re-offending, that the factors in favour of cancellation of the visa outweigh the factors against cancellation, so the discretion to cancel the visa should be exercised.

DECISION

1. The Tribunal affirms the decision under review.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member

.................................[sgd].......................................

Associate

Dated 11 July 2013

Date of hearing	9 July 2013
Applicant	In person
Advocate for the Respondent	Mr S Kikkert
Solicitors for the Respondent	Litigation and Opinions Branch, Department of Immigration and Citizenship