IHAKA WHAANGA CHRISTY and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2009] AATA 762
•5 October 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 762
ADMINISTRATIVE APPEALS TRIBUNAL No. 2009/3651
GENERAL ADMINISTRATIVE DIVISION Re IHAKA WHAANGA CHRISTY Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal: G.D. Friedman, Senior Member Date:5 October 2009
Place:Melbourne
Decision: The Tribunal affirms the decision under review. (sgd) G.D. Friedman
Senior Member
MIGRATION – Special Category (Temporary) visa – cancellation – conviction for serious offences – character test – exercise of discretion
Migration Act 1958 ss 499(1), 499(2A), 501(2), 501(6), 501(7)
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 No 81
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
REASONS FOR DECISION
5 October 2009 G.D. Friedman, Senior Member
1. Ihaka Christy is a citizen of New Zealand who has been in Australia permanently since 1995. His Class TY subclass 444 Special Category (Temporary) visa was cancelled on 14 April 2009 because a delegate of the respondent was not satisfied that Mr Christy passes the character test due to his criminal record in Australia. The delegate decided to exercise the discretion to cancel the visa, and Mr Christy was taken into immigration detention on 30 July 2009.
LEGISLATIVE BACKGROUND
2. 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 he or she 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))…
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.
3. 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 (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583).
4. On 3 June 2009 the Minister, exercising powers under s 499(1) of the Act, issued Direction [no.41] – Visa Refusal and Cancellation under s 501 (Direction 41) that came into operation on 15 June 2009. 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.
5. Paragraph 9 of Direction 41 requires decision-makers to take into account the primary considerations in every case. The four primary considerations are set out in paragraph 10 of Direction 41:
(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).
…
6. Paragraph 11 of Direction 41 provides that other considerations (not primary considerations) be taken into account. These include family ties, the person’s age and health, any links to the country to which the person would be removed, hardship to the person or the immediate family lawfully resident in Australia, level of education, and whether the person has been advised previously of the deportation or character provisions of the Act.
ISSUES
7. The issues before the Tribunal are:
· Does Mr Christy pass the character test? If not:
· Should the discretion to cancel the visa be exercised? This involves an assessment of the primary considerations and other considerations.
DOES MR CHRISTY PASS THE CHARACTER TEST?
8. Mr Christy was born in New Zealand in 1975 and has lived continuously in Australia since 6 March 1995. In 1996 he was convicted of theft and recklessly cause serious injury, and was fined and sentenced to 6 months’ gaol to be served as an Intensive Correction Order. In 1997 he was convicted of theft and was fined. In 1998 he was convicted of intentionally cause serious injury and attempted armed robbery, and was sentenced to 18 months’ gaol with a minimum of 8 months. In 2000 he was convicted of burglary and theft, and was sentenced to 24 months’ gaol (wholly suspended). In 2001 he was convicted of marine offences involving abalone, and was fined. In 2002 he was convicted of burglary and theft, and was sentenced to 6 months’ gaol (wholly suspended). In 2005 he was convicted of drug trafficking, and was sentenced to 2 years’ gaol and was released on bail on 31 July 2007 to appeal against conviction on charges involving theft, unlawful imprisonment and assault with intent to rape. His appeal was upheld and in 2008 he pleaded guilty to common law assault, and was sentenced to a gaol term but was not ordered to serve additional time.
9. Mr Christy conceded, and the Tribunal finds, that he does not pass the character test.
THE FIRST PRIMARY CONSIDERATION: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM SERIOUS CRIMINAL OR OTHER HARMFUL CONDUCT
10. Paragraph 10.1 of Direction 41 provides that factors relevant to assessing the level of risk to the community include:
(a)the seriousness and nature of the conduct; and
(b)the risk that the conduct may be repeated.
Seriousness and nature of the conduct
11. Paragraph 10.1.1(1) of Direction 41 specifies that crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community, and that crimes involving violence are especially abhorrent to the whole community. Examples of offences and conduct that the Government views as serious are set out in paragraph 10.1.1(2) of Direction 41. They include grievous bodily harm, reckless injury, assault and aggravated assault, robbery, illicit drugs and ancillary offences in respect of offences and conduct that are considered serious, including convictions for attempting to commit an offence.
12. Paragraphs 10.1.1(3) to (5) of Direction 41 require decision-makers in exercising the discretion to take into account a number of other factors, including the sentence imposed for the offences including the number and nature of the offences, the period between offences and the time that has elapsed since the most recent offence, relevant information about the person, such as judicial comments or professional psychological reports and any relevant factors the person provides as mitigating factors.
13. According to the Summary of Charges prepared for the various Court proceedings, Mr Christy has been convicted of false imprisonment; assault; trafficking drugs of dependence; burglary; theft; intentionally cause serious injury; attempted armed robbery; and recklessly cause serious injury. His criminal conduct can only be regarded as very serious, as it involves multiple episodes of violence.
14. On the question of the period between offences and the time since the most recent offences, the Tribunal takes into account that Mr Christy’s offences appear to have been committed at regular intervals since his arrival in 1995, with the first offences committed in March 1996 and the most recent in January 2005. The periods between offences range from 18 months to 24 months. Since January 2005 he has spent three and a half years in gaol (either on remand or as part of a sentence) and in the community for about 14 months until he was placed in immigration detention.
15. In a written statement dated 29 September 2009 Mr Christy acknowledged the seriousness of the offences and said that he takes full responsibility for his criminal actions. He recognised that his past actions were reckless, irresponsible and deliberate, and he expressed his remorse and apology to the Australian community for the consequences of his behaviour.
16. Mr Christy explained that originally he had come to Australia at the age of 19 years to be with his father but when his father died in 2003 he had difficulty coping and turned to illicit drugs. He said that he was young and immature, and had little by way of supports within the community. He described himself as a lost soul during the early years in Australia. Mr Christy admitted that he committed his first offence in March 1996 when he attacked a man in the head and face with a broken glass at a tavern. He also agreed that he committed a planned armed robbery at a milk bar in 1998 and attacked the proprietor with a tyre lever, and that the sentencing Judge described the incident as …a savage attack on a defenceless woman.
17. In respect of other offences Mr Christy agreed that in 2000 he broke into business premises and stole a number of generators and pumps. He told the Tribunal that in 2002 and 2003 he was involved in the manufacture of methamphetamine as he had developed a drug habit. Some of the offences occurred during a suspended gaol sentence. In relation to the 2005 offences Mr Christy confirmed that he had an altercation with a prostitute in St. Kilda and that this had resulted in convictions that were, in part, overturned on appeal, but he had decided to plead guilty to theft and common law assault so that the matters could be finalised without a re-trial. He said that these offences were committed while he was using drugs, and admitted that his numerous assertions to immigration authorities that he had given up drug-taking had been untrue.
Risk that the conduct may be repeated
18. Paragraph 10.1(2) of Direction 41 requires the Tribunal when assessing the risk of harm to the community to consider the risk that the conduct may be repeated. That factor is amplified by paragraph 10.1.2, which directs the Tribunal’s attention to the person’s previous general conduct and total criminal history, evidence of breach of judicial orders, and evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation.
19. Mr Christy emphasised that he completed a drug and alcohol program in gaol and that the program was helpful. As a result he was asked to undertake a prisoner mentor training program, which he completed in May 2005, and said that the course helped him to understand himself and others around him. He also completed an anger management program in 2007. Mr Christy told the Tribunal that since his release from gaol in 2007 he has been in full-time employment as a tow-truck driver (until his placement in immigration detention in July 2009) and has committed no further offences. He has been supporting his partner and three of his four children. He said that his most recent term of imprisonment was a turning point in his life.
20. On the question of the possibility of re-offending, Mr Christy stated that he has learnt from his mistakes. He enrolled in the Prisoner Supporter Program in gaol and wanted to help other prisoners of Polynesian background keep in touch with their culture. He said as a consequence he began to understand who he was and his life started to fall into place. Mr Christy assured the Tribunal that, at the age of nearly 35 years, he will not engage in any further criminal activity and to expose his family to hardship that would necessarily follow. He described himself as a …good, responsible family man who … can care for my family, my girls and that I can contribute to the community. He referred to his stable employment since his release from gaol in 2007 and his hard work to be a good partner and father, and to keep away from drugs. He said his responsibilities to his family are the prime factors motivating him not to re-offend.
21. Under cross-examination Mr Christy agreed that in March 1998 he told immigration authorities that he would never offend again. In September 1998 he wrote to the sentencing Judge that he considered himself to be a good person and that the crime (armed robbery at the milk bar) was out of character. He promised to give back to the community on completion of his sentence, and expressed concern at the effect of his crimes on his ability to care for his children. He agreed further that in April 1999 in response to a warning from immigration authorities of a possible cancellation of his visa, he stated while in gaol that he had vowed never again to put himself or anyone else through the pain and suffering that he had caused. Mr Christy conceded that on 20 June 2003 in an interview with immigration authorities he stated that had ceased his drug-taking and that there was no likelihood that he would repeat his criminal activity as he had …too much responsibility to his family.
22. In a written statement dated 29 September 2009 Mrs C Leahy stated that she and Mr Christy have been in a relationship since 1998. She said that since his release from gaol more than two years ago Mr Christy has proven to her that he can be a responsible partner and father by maintaining stable employment and providing for his family. However Ms Leahy explained that in 2008 she asked Mr Christy to move out of the family home to demonstrate that he had to change. She said that, as a result, he realised that if he continued with his existing lifestyle he would lose his family. As a consequence he is no longer as easily influenced by people as he once was, which convinced her that he is unlikely to re-offend. Ms Leahy said that she and Mr Christy now are able to communicate effectively and that the relationship is strong. She said that he has changed for the better, and has put the past behind him, describing him as big-hearted and a loving partner and father.
23. Under cross-examination Ms Leahy agreed that on 8 April 1999 she wrote a letter of support in which she stated that Mr Christy’s time in gaol had taught him a lesson, and that he had matured considerably. At that time she said that she believed he deserved one more chance to remain in Australia. Ms Leahy agreed that in an interview with immigration authorities on 26 June 2003 she stated that she did not consider him to be a danger to society. She said in the interview that she did not think that he would commit any further burglaries, and that in connection with the attempted armed robbery offences he was …young and stupid.
24. In a written statement dated 9 September 2009 Ms C Robinson said that Mr Christy is her former partner and is the father of their two daughters. She stated that she has known Mr Christy for 17 years, and he has not always been reliable. However Ms Robinson told the Tribunal that in 2008 she returned to Australia to live last year after a prolonged absence, and found Mr Christy has made changes to his life to such an extent that she has agreed to allow their older daughter to reside with him and Ms Leahy. She said that Mr Christy has become responsible and reliable, and has provided a good home environment.
25. In a written report dated 11 August 2009 Ms R Biddle, Manager, New Zealand Maori Polynesian Welfare Support Group, referred to Mr Christy’s stable employment and said that he has been held in high regard within his cultural community. Ms Biddle acknowledged Mr Christy’s prior convictions, but said that he has successfully completed numerous rehabilitation courses which have helped him move forward in a positive manner. She said that he has kept out of trouble for the past five years and realises that he has to remain strong in the future. Ms Biddle emphasised the importance of his family in his rehabilitation, and stated that the Support Group would continue to assist him if he is permitted to remain in Australia. Several friends and members of Mr Christy’s family made written statements in which they referred to changes that he has made.
26. In considering the likelihood of recidivism the Tribunal takes into account the nature of the offences and that Mr Christy has served several terms of imprisonment. He has expressed remorse and has assured the Tribunal that he has learnt from his past mistakes. He has been in stable employment since his release from gaol in 2007 and says that he has ceased using drugs. He and Ms Leahy believe that he has finally realised that his behaviour must change. He has significant family support.
27. Overall, Mr Christy’s offences are extremely serious and were committed at regular intervals over several years; were committed shortly after his arrival in Australia; and included offences committed during a suspended gaol sentence and while on bail. Despite his assurances about having changed during his most recent gaol sentence, the Tribunal has concerns about the reliability of his evidence. In particular his evidence about the nature and extent of his drug use, and its role in his offending, was inconsistent and confusing. He told immigration authorities in 2003 that he had ceased using drugs, yet he said that the offences which occurred in 2005 were in the context of his drug use. He made reference to immaturity, yet in 2005 he was aged about 30 years when he committed serious offences involving violence.
28. Mr Christy has given numerous assurances to Courts, immigration authorities and his partner that he would not re-offend; that he had learnt his lesson; and that the prospect of separation from his young family would motivate him to cease offending. The Courts and immigration authorities have relied on these assurances, yet he has continued to re-offend at regular intervals, despite several instances of the strong possibility of his removal from Australia and separation from his family. There is no persuasive evidence that he has undertaken any meaningful rehabilitation programs since his release from gaol in 2007. As recently as 2008, some months after his return to the community, Ms Leahy separated from him and took the children for at least two months because she was not satisfied that he had changed his behaviour. The supporting statements by friends and members of his extended family refer to Mr Christy as having changed in his attitude, and to his commitment to his family, but there is little basis for their conclusions over a relatively short period when compared with past assurances that he has matured. The strong family support and stable employment have not, in the past, been sufficient to prevent Mr Christy from re-offending.
29. In respect of the first primary consideration of whether the Australian community will be protected from serious criminal or other harmful conduct, particularly crimes involving violence, the Tribunal finds that the risk that Mr Christy will re-offend is high. This primary consideration weighs strongly in favour of cancellation of the visa.
SECOND PRIMARY CONSIDERATION: WHETHER MR CHRISTY WAS A MINOR WHEN HE BEGAN LIVING IN AUSTRALIA
30. Paragraph 10.2 of Direction 41 provides that favourable consideration should be given if the person was a minor when he or she first began living in Australia and spent formative years in Australia, but less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.
31. Mr Christy was aged 19 years when he began living in Australia, so this primary consideration is not relevant to the application.
THIRD PRIMARY CONSIDERATION: THE LENGTH OF TIME THAT MR CHRISTY WAS ORDINARILY RESIDENT IN AUSTRALIA PRIOR TO ENGAGING IN CRIMINAL ACTIVITY
32. Paragraph 10.3 of Direction 41 provides that consideration be given to the length of time that a person has been ordinarily resident in Australia, with more favourable consideration to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that reflects negatively on the person’s character.
33. Mr Christy arrived in Australia in March 1995 and his first offences were committed in about March 1996, which is a relatively short period and reflects negatively on his behaviour. The Tribunal finds that this primary consideration weighs in favour of cancellation of the visa.
FOURTH PRIMARY CONSIDERATION: RELEVANT INTERNATIONAL OBLIGATIONS
34. The Convention of the Rights of the Child provides that, in all actions involving children, the best interest of a child is a primary consideration. Mr Christy has four children aged under 18 years. In a written statement dated 29 September 2009 Sage Christy, aged 15 years, said that she lived with Mr Christy and her mother until her parents separated when she was about 4 years of age, and she lived in New Zealand until moving to Scotland in 2005 with her mother. In July 2008 she returned to Australia to live in Sydney. She stated that she had spent holidays with Mr Christy when younger, but had difficulty keeping in close contact when she lived in Scotland.
35. Ms Christy said that in June 2009 she moved to Melbourne to re-establish contact and to help him, and now lives with him and Ms Leahy. She emphasised that she and her sisters need their father and that his removal to New Zealand would deprive them of their family structure, as all other close family members are in Australia. She told the Tribunal that she enjoys living in Melbourne with her two half-sisters and Ms Leahy, and is settled in her new school. She said that if Mr Christy is forced to move to New Zealand she would prefer to maintain her current living arrangements and stay in Melbourne to complete her secondary education. She agreed that she lived with Mr Christy for only a few weeks before he was taken into immigration detention.
36. Ms Leahy told the Tribunal that the younger girls (aged 7 and 5 years) are settled in Australia and their future welfare depends on them remaining close to family and friends. They are happy at school and are in familiar surroundings. She said that if Mr Christy is forced to return to New Zealand the children’s lives would be greatly affected because the family unit would be broken, but the children would remain with her in Melbourne.
37. Mr Christy told the Tribunal that his second-oldest child (aged 12 years) lives with her mother in Sydney, and he has tried to maintain a close relationship with her through holiday and telephone contact. He said that if he is forced to move to New Zealand his personal contact with her will be more difficult.
38. The Tribunal accepts that Mr Christy has tried to maintain close ties with his children, all of whom (apart from Sage) are Australian citizens. Between 1998 and 2008 Sage and the second-oldest child lived in New Zealand and Scotland, so that personal contact with Mr Christy was limited. The younger children have been separated from Mr Christy only when he has been in gaol and during the separation from Ms Leahy in 2008. They have been told that his absences have been due to hospitalisation.
39. There was no dispute that cancellation of Mr Christy’s visa would not be in the best interests of the children because it would deprive them of his day-to-day parental contact and his financial and emotional support, particularly taking into account the age of the children. However in view of the evidence from Ms Leahy and Sage Christy that they would not accompany Mr Christy to New Zealand, other aspects of the children’s lives would continue without significant disruption, with the assistance of family members. The second-oldest child would continue to live with her mother in Sydney, and the Tribunal takes into account that Sage lived with Mr Christy for only a brief period before he was taken into immigration detention. In all the circumstances the Tribunal finds that this primary consideration weighs against cancellation of the visa.
OTHER (NOT PRIMARY) CONSIDERATIONS
Family ties, the nature and extent of any relationships
40. Ms Leahy stated that although she is an only child she belongs to a large Australian family including parents, grandparents and extended family. All of her friends live in Australia. Mr Christy has three siblings and some members of his extended family living in Australia.
41. The Tribunal takes into account that Mr Christy has a longstanding relationship with Ms Leahy who is the mother of two of his children and is an Australian citizen. A third child lives with him. He has the support of Ms Leahy and her extended family. Cancellation of Mr Christy’s visa would disrupt the family relationships, although some contact could be maintained through telephone and electronic communications and visits to New Zealand by his family. Sage and her sister travelled between Australia and New Zealand previously to see Mr Christy for contact visits. Ms Leahy has significant family support and has managed to pursue a career and care for the children while Mr Christy was in gaol. This is likely to continue if Mr Christy’s visa is cancelled.
Age
42. Mr Christy is aged 33 years. There is no evidence that he requires care or income support, so this consideration is not relevant to the Tribunal’s consideration.
Health
43. There is no evidence before the Tribunal of any medical condition suffered by him, so this consideration is not relevant to the Tribunal’s consideration.
Links to the country to which he would be removed
44. Mr Christy told the Tribunal that he considers Australia to be his home, although his mother and some extended family members live in New Zealand.
45. The Tribunal accepts that Mr Christy has not lived in New Zealand since 1995, although he spent his formative years in that country and still has some links to New Zealand. In all the circumstances this consideration is of little practical application.
Hardship likely to be experienced by Mr Christy or his immediate family members lawfully resident in Australia
46. Mr Christy emphasised that his continuing prospects for employment, rehabilitation and personal development would be affected adversely if he is required to return to New Zealand because he would have to re-establish his life after such a long absence. He reiterated that he would suffer hardship if separated from Ms Leahy and from his children, who need their father as part of the family unit. Ms Leahy said that she has been working for her current employer for 10 years and has been promoted to a position as a training facilitator. She said that if Mr Christy’s visa is cancelled she would suffer financial hardship in view of the contribution made by Mr Christy’s earnings, although she agreed that she has been able to manage during periods of his incarceration with the assistance of her parents, who have purchased a block of land for her and the children and would continue to help the family financially and emotionally.
47. The Tribunal accepts that Mr Christy, Ms Leahy and the children would suffer some hardship if he is separated from his family and would be unable to provide the same level of financial and emotional support. The existing family unit could not continue. However the hardship would be lessened by the ongoing support by family members and the continuation of the current arrangements for the children and Ms Leahy’s employment. Mr Christy has a good employment record and there appears to be no reason why he could not secure employment in New Zealand. This consideration weighs against cancellation of the visa.
Level of education
48. The Tribunal is satisfied that any lack of formal education has not impacted adversely on Mr Christy’s ability to present his claim in the application for review or to give instructions to his legal representatives. The Tribunal acknowledges that he completed several courses while incarcerated. This consideration has no practical application to the Tribunal’s consideration.
Whether Mr Christy has been formally advised in the past by the Department about conduct that brought him within the deportation provisions of the Act or the character provisions of the Act
49. Mr Christy was warned by the Department of Immigration and Citizenship on 20 July 1999 and received a second warning on 22 April 2004. The Tribunal is satisfied that Mr Christy understood the warnings and the consequences of further offending. This consideration weighs strongly in favour of cancellation of the visa.
SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?
50. In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 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. The primary consideration of the protection of the Australian community weighs strongly in favour of cancellation of Mr Christy’s visa in view of the Tribunal‘s conclusion about the seriousness of the offences, the harm caused, and the high risk that he will re-offend.
51. The second primary consideration concerning whether Mr Christy was a minor is not relevant to the Tribunal’s decision. The third primary consideration weighs in favour of cancellation because Mr Christy was resident in Australia for a relatively brief period prior to engaging in criminal activity. The fourth primary consideration involving the best interests of a child weighs against cancellation of the visa because there are four children under the age of 18 years, three of whom live with Mr Christy, although their current stable living arrangements would not change because they would not accompany him to New Zealand.
52. Of the other (secondary) considerations the Tribunal takes into account that Mr Christy’s relationships with immediate and extended family members in Australia would be disrupted, and there would be some hardship to him and to his family, which weigh against cancellation of the visa, although Ms Leahy’s current living arrangements and her career would not change because she would not accompany Mr Christy to New Zealand. The two previous warnings by immigration authorities of the possibility of cancellation weigh strongly in favour of cancellation. Other factors (including his links to New Zealand) are of little relevance.
53. After considering all the circumstances of the primary considerations and then the other considerations (which must be given lesser weight than the primary considerations), the Tribunal concludes, for the reasons given, that the factors weighing in favour of cancellation of the visa outweigh the factors against cancellation, and the discretion to cancel the visa should be exercised.
DECISION
54. The Tribunal affirms the decision under review.
I certify that the fifty-four [54] preceding paragraphs are a true copy of the reasons for the decision of:
G.D. Friedman, Senior Member
(sgd) Grace Horzitski
Associate
Date of hearing: 29 September 2009
Date of decision: 5 October 2009
Advocate for the applicant: Ms P Kerdo
Solicitor for the applicant: West Heidelberg Community Legal Service
Advocate for the respondent: Ms K Miller
Solicitor for the respondent: Australian Government Solicitor
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