Jama and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Jama and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 218 (12 February 2021)
Division:GENERAL DIVISION
File Number(s): 2020/7839
Re:Mohamed Abdurahman Jama
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Britten-Jones
Date:12 February 2021
Place:Melbourne

The Tribunal sets aside the reviewable decision of 25 November 2020 and substitutes a decision that the mandatory cancellation of the applicant’s visa on 10 September 2020 is revoked.
...........................[SGD].............................................
Deputy President Britten-Jones
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – the applicant has five minor children under the age of seven and has lived in Australia for most of his life – there is a low risk of further offending - the interests of minor children and the strength, nature and duration of ties outweigh the primary considerations of the protection and expectations of the Australian community - decision set aside
LEGISLATION
Migration Act 1958
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Gasper v Minister for Immigration and Border Protection [2016] FCA 1166
SZRTN v Minister for Immigration and Border Protection (2014) 63 AAR 243
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Deputy President Britten-Jones
12 February 2021

This is an application for review of a decision of a delegate of the respondent not to revoke a mandatory cancellation of the applicant’s visa under s 501(3A) of the Migration Act 1958 (the Act).
THE DECISION TO CANCEL THE VISA
On 10 September 2020, the applicant’s Class TY Subclass 444 special category (temporary) visa (the visa) was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) of the Act on character grounds, due to his substantial criminal record and because he was serving a sentence of imprisonment.
On 17 September 2020 and 21 October 2020, the applicant made representations seeking revocation of the cancellation decision.
On 25 November 2020 a delegate of the respondent decided not to revoke the cancellation decision under s 501CA(4).
LEGISLATIVE FRAMEWORK
Under s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of subsection (6)(a) (substantial criminal record), on the basis of subsection (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in (3A) is outlined in s 501(6) of the Act. Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)).
For the purposes of subsection (6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[1]
[1] s 501(7)(c) of the Act.
Where a visa has been cancelled under s 501(3A), the Minister has a power to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked.[2] The discretion to revoke the cancellation on the grounds that ‘the Minister is satisfied that there is another reason why the original decision should be revoked’ is a broad one.
[2] Ibid s 501CA(4).
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
ISSUES BEFORE THE TRIBUNAL
The applicant does not pass the character test prescribed under s 501(6)(a) of the Act as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has “a substantial criminal record” as defined under s 501(7) of the Act.
The issue for the Tribunal to determine is whether having regard to Ministerial Direction No. 79[3] (Direction 79) there is another reason why the cancellation decision should be revoked. Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation decision should be revoked following that evaluative exercise, the Tribunal must decide to revoke the decision.[4]
[3] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018).
[4] Gasper v Minister for Immigration and Border Protection [2016] FCA 1166 at [38].
FACTUAL OVERVIEW
The applicant gave evidence together with his wife and numerous relatives. The effect of their evidence was that if the applicant were removed to New Zealand it would have a devastating impact on his wife and five (soon to be six) children. It would also impact the applicant’s sister and her six children, for whom the applicant is a role model in the absence of their father. The applicant’s wife and his sister are very close and have been struggling to look after 11 children between them. They both made an emotional and genuine plea for the return of the applicant to help them with their young families. In addition, there are the ageing parents of the applicant who need his support as they become more frail and their health deteriorates.
The applicant was cross-examined about his offending. He regrets his actions and says that he has addressed the issues that caused him to offend. He has a long criminal history which includes serious offending; but he says he will not offend again because he wants to be a good father to his children. There is a written report from a psychologist who opines that his prognosis is good and that most of his risk factors have been taken care of.
I adopt the reasons for sentence of the Judge in the Melbourne County Court dated 21 July 2020 with respect to the applicant’s personal circumstances as follows:
22. You were born on [date] 1986 in Mogadishu, Somalia, and are now 34 years
old. Your father worked in government in Somalia. You have one older sister
and you had two younger brothers. In 1992 your family fled Somalia for Kenya
due to violence that had broken out in your home country. Your two younger
brothers died in separate incidents during the journey. You, your parents and
your sister spent about two years in a refugee camp in Kenya before you were
settled in New Zealand, aged eight. At this point you had had little or no
schooling and spoke no English.
23. You attended primary school in New Zealand which you found very challenging. You were the only refugee at the school, you had to learn English, you found it very hard to make friends, and you were bullied and picked on because of your appearance.
24. In 1998 your family relocated to Australia when you were aged 12. You were
not happy about this as you had just mastered conversational English and you
were starting to find your feet in New Zealand. You attended Braybrook Primary
School briefly but due to your problems with literacy you were moved to an
English as a Second Language school. This assisted with your literacy but
compounded the problems you had making friends and fitting in.
25. You commenced high school in Carlton but your family moved again, and you
then attended Maribyrnong High School. Due to behavioural problems you
were moved to Debney Park Secondary College in Flemington. You continued
to struggle through high school because of problems with literacy. You
participated in the VCAL program and left school in Year 11.
26. Your parents loved you, but your father was strict and had high expectations,
particularly given you were his sole surviving son. You felt very much that you
failed to live up to the expectations of your school, your parents and your peers.
You felt out of place and found greater comfort and acceptance in a negative
peer group of teenagers and young adults who lived around the Housing
Commission units. Through this you were introduced to drug use in your
adolescence and your criminal history from 2005 to 2007 reflects largely this
period of your life.
27. You have held various jobs. At the age of 17 you obtained a forklift licence and
worked for an employment agency. Until the age of 24 or 25 you had
intermittent work as a packer, machine operator and storeman. You then
undertook a Certificate III in Automotive Technology but did not progress to a
mechanic apprenticeship. You have held various forms of employment since
then, including doing a 12 month traineeship in construction and landscaping.
28. In September 2011 aged 25 you married Zara Abdi. This date appears to be
slightly out as in August 2011, you were gaoled by this court for five months for
a number of offences including driving matters and possessing a controlled
weapon. In July 2012 you received a suspended sentence for further driving
matters and your last prior conviction was in August 2015, again for driving
matters, for which you received a work only Community Correction Order.
According to your criminal history that was dealt with in the Assessment and
Referral Court list, or ARC list, however if that is correct and I am not sure it is,
there was no material before me as to why you were dealt with in the ARC list
or what would have qualified you for that list.
29. You have five children, four girls and a boy who range down in age from 6 to
almost 2. Your youngest was born in September 2018 whilst you were in
custody. Previously you resided with your whole family at 6/39 Kensington
Road, but approximately a year before this offending your family obtained
private rental accommodation in a four-bedroom home in Tarneit. You
continued to rent the public housing property.
30. Since marrying the focus on your family has helped you refrain from offending,
however you have also maintained relationships with negative peers and
continued your drug use. I am told your drug taking has waxed and waned over
the years. You might use occasionally for a period, then escalate your drug use
which would then result in conflict and you would leave the family home. Your
drug use would then further escalate, potentially to daily use, which you would
then reduce before returning home. I am told there would be brief periods of
abstinence or infrequent use, and then the cycle may repeat. At the time of this
offending you were using drugs daily and you were not living at the family home.
I am told you would use ice over three or four days, and then use heroin to
“come down”.
31. A psychological report was tendered on your behalf. Mr Kleynhans diagnosed
you with generalised anxiety disorder likely dating from adolescence, persistent depressive disorder also dating from adolescence, stimulant use disorder in
sustained remission, opioid use disorder, cannabis use disorder, personality
disorder not otherwise specified, and unspecified alcohol-related disorder.
Your counsel did not rely on any of the Verdins principles. Rather, your counsel
submitted by way of explanation that your significantly disadvantaged
upbringing and history of anxiety and depression has led to your drug use,
which in turn has led to your offending.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
When considering whether to revoke the delegate’s decision, the Tribunal must have regard to Direction 79. The objective of Direction 79 is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.[5]
[5] Direction 79 at 6.1.
The guiding principles in Direction 79 that the Tribunal must apply in determining whether or not to revoke a visa cancellation include:
·Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia bearing in mind that being allowed to remain in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law abiding.
·The Australian community expects that the Australian Government can and should cancel a non-citizen’s visa if they commit serious crimes in Australia or elsewhere.
·A non-citizen who has committed a serious crime, including crimes of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to have to forfeit the privilege of staying in Australia.
·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 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.
·The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of 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.
Keeping those guiding principles in mind, I turn my mind to the primary considerations and other considerations set out in Part C of Direction 79:
·Primary considerations:
oProtection of the Australian community
oThe best interests of minor children in Australia; and
oExpectations of the Australian community;
·Other considerations include (but are not limited to):
oInternational non-refoulement obligations
oStrength, nature and duration of ties
oImpact on Australian business interests
oImpact on victims; and
oExtent of impediments if removed.
Protection of the Australian community – 13.1 of Direction 79
When considering the protection of the Australian community, I have regard to the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity. I give consideration to:
·the nature and seriousness of the non-citizen’s conduct to date; and
·the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct – 13.1.1 of Direction 79
The offending by the applicant is very serious. He arrived in Australia aged 12 in 1998. His English was poor and he struggled at high school. He completed year 10 but gave up his schooling in year 11.
The applicant first offended in 2002 when he stole a bicycle and was sentenced without conviction in the Broadmeadows Children’s Court. His other offence as a minor was robbery and receiving stolen goods for which he was sentenced in the Melbourne Children’s Court on 4 April 2003.
In his early years as an adult there were numerous and regular offences, resulting in him being convicted of robbery, theft, aggravated burglary, unlawful assault, driving whilst disqualified, unlicensed driving, stating a false name and failing to answer bail. This offending, which took place between July 2005 and August 2007, represented an intensive period of criminal activity and a contumelious disregard for the authorities. He received his first custodial sentence in the Melbourne County Court in April 2007 when he was sentenced to an aggregate of six months imprisonment with four months suspended. This did not deter him, and he continued to offend and was sentenced to one month imprisonment in the Magistrates Court of Melbourne for driving whilst suspended and failing to answer bail on 1 August 2007.
When asked about this period of offending between 2005 and 2007 the applicant said that he was “young and dumb” and that he regretted his actions. He had been introduced to cannabis and later ‘ice’ and heroine and had begun associating with a negative peer group. He was aged between 19 and 21 years during this period so was still a young man who was obviously immature and easily influenced by the wrong people.
In August 2011 the applicant was convicted of numerous driving offences and possession of a controlled weapon without excuse. He was sentenced to five months imprisonment and was disqualified from driving for four years. In July 2012 he was convicted of further driving offences and failing to answer bail and refusing a breath test, for which he was sentenced to a term of imprisonment for three months.
The most recent offending, for which he is currently incarcerated, is the trafficking of methylamphetamine, cocaine, heroin and cannabis and possession of a firearm. He was charged on 3 July 2018 and pleaded guilty. He was convicted on 21 July 2020 and sentenced to 3 years and nine months imprisonment.
With respect to the nature and gravity of this offending, Judge Fox said in her reasons for sentence on 21 July 2020:
45. I turn to the nature and gravity of your offending. You had a total of five different drugs in significant quantities. As your counsel concedes, the offending is
serious. I infer in all the circumstances that you were trafficking drugs for profit.
There is no evidence before me as to the purity or value of the various drugs.
However, given the quantity and wide variety of drugs you were trafficking, this
is not street level trafficking done just to support a habit.
46. Possession of a sawn-off shot gun is also a serious offence. Firearms threaten
the peace and good order of the community which is why they are tightly
controlled and regulated.
47. General deterrence is a significant sentencing factor in this case. Drug dealing
for profit causes considerable harm in society, and potential drug traffickers need to understand that if they take the risk and get caught they will go to gaol. Denunciation and just punishment are also significant sentencing factors in this case.
48. Specific deterrence has some relevance here. This is not your first time in
custody. Whilst you do not have any prior convictions for drug trafficking, you
do have a long history of drug use, which underlies this offending. You do have
some insight into your drug problem, and you recognise that without being
placed into custody you probably wouldn’t have stopped using. To your credit
you have not returned to drug use since being bailed, and I regard your
prospects of rehabilitation as very good if you remain drug free.
49. Your counsel submitted in all the circumstances, where you have served
20 months' imprisonment, you could be dealt with by way of a combination
sentence that does not see you returned to custody, but allows you to remain
in the community subject to a lengthy Community Correction Order. The
prosecution submitted that given the gravity of your offending, a head sentence
and non-parole period is the only appropriate sentence.
50. I did have you assessed for a Community Correction Order and you were
assessed as suitable. However, in all the circumstances I have determined that
your offending is too serious to be dealt with by way of a combination sentence.
You were bailed in April this year, and it is unfortunate that you will now return
to custody having commenced your rehabilitation, particularly given if you had
remained in custody you would be approaching the end of your non-parole
period. However, given the quantity and number of the drugs involved together
with the firearm this is the conclusion I have come to.

I adopt the above reasons.
The applicant’s offending has been frequent over a long period of time, although there were some noticeable gaps in his serious offending including from 2013 to 2018, which coincides with his marriage and having children. I note that whilst the applicant has had a long-term association with illegal drugs, his involvement with trafficking has been limited to the most recent charges. I take into account the cumulative effect of the repeated driving offences which on their own are not particularly serious but together constitute a concerning disregard and disrespect for authority. I take into account that he has served at least three custodial sentences for serious offending which suggests a failure to learn from his mistakes. I conclude that his offending is of a most serious nature.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 13.1.2 of Direction 79
In considering whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, I have regard to the principle that the Australian community’s tolerance for any risk of future harm decreases as the seriousness of the potential harm increases. I also have regard to:
·the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and
·the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant reoffending.
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[6] Her Honour states that to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are, as well as the likelihood of the person engaging in that conduct in the future.
[6] (2014) 225 FCR 424.
If the applicant were to engage in further similar offending, then the nature of the harm is very serious. The trafficking of illegal drugs is a most serious societal problem which causes widespread harm throughout the community. Firearms are dangerous and have the obvious potential to inflict harm.
Next, I turn to the likelihood of the applicant reoffending. When he gave his evidence, the applicant expressed genuine remorse and an appropriate insight as to the wrongfulness of his conduct. However, this is not enough on its own and I have to consider all the factors that go to whether he is sufficiently rehabilitated. The seriousness and frequency of his past conduct is a factor that indicates a risk of future offending. On the other hand, there are many factors that point to a low risk. Since his arrest in April 2018 he has been drug free including a period of about 3 months when he was in the community. During this period he was welcomed back to the family home where he supported his wife by helping with the children while working at the family restaurant. He avoided drugs and stayed away from any negative influences. If this period is indicative of the future, then it is very encouraging. This positive factor was recognised by the sentencing Judge who noted the applicant’s insight into his drug problem and regarded his prospects of rehabilitation as very good if he remained drug free.
Positive opinions about the applicant have been expressed by the psychologist, Edwin Kleynhans, who prepared written reports dated 4 July 2020 and 13 January 2021. He noted that the applicant had been receiving drug and alcohol counselling since his arrest in April 2018 and that he was motivated to change his addictive behaviours as he felt obligated to his wife and children. Mr Kleynhans concluded in his more recent report that his prognosis is good and that most risk factors had been addressed.
Further, there is a letter from Caraniche dated 29 January 2021 confirming his current engagement in a drug and alcohol treatment program at Middleton Prison, which will be completed by 18 February 2021. The senior clinician who wrote the letter said that he is engaging very well in treatment and is completing all tasks required.
I conclude that there is a low risk of the applicant reoffending. He has taken appropriate steps to rehabilitate himself and, if released, he will have the benefit of a supportive wife and a stable home life with his family. He realises that if he re-offends he will lose his wife and children who are dear to him – this creates a real incentive for him to behave. He has the support of his sister and his ageing parents for whom he wishes to provide care. In addition, he has the opportunity to take over the family restaurant which will assist him to provide much needed financial support for his wife and children. He will be kept busy looking after the children and the restaurant and I consider it unlikely that he will return to a life of drugs and crime.
Conclusion as to protection of the Australian community
Whilst the consequences of reoffending would be significant, there is a low risk that he will reoffend. Consequently, I consider that the protection of the Australian community is a factor that weighs only slightly in favour of non-revocation of the cancellation decision.
Best interests of minor children – 13.2 of Direction 79
In making a determination about the revocation of a visa cancellation, I must take into consideration the best interests of any children in Australia that are under the age of 18 years. Each child’s interests are to be considered individually to the extent that their interests may differ.
The applicant has five children under the age of seven. The sister of the applicant has six children, four of whom are minors. The sister’s husband left her soon after the birth of their sixth child. The sister gave evidence about the loving support provided by the applicant to her, and that her children consider the applicant like a second father. I was impressed with the evidence from the wife and sister who have a close relationship and who live near each other. They are strong women who have faced a great deal of adversity in their life but who are dedicated to their children. They both referred to the strong and loving relationship between the applicant and the children. They both spoke favourably of the applicant and expressed a passionate desire for him to be released so that he could help the wider family.
The following factors that I must consider and are relevant to this application include:
(a)the nature and duration of the relationship between the child and the applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;
(b)the extent to which the applicant is likely to play a positive parental role in the future;
(c)the impact of the applicant’s prior conduct and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the applicant would have on a child, taking into account the ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child; and
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
The applicant is the father of five very young children. The evidence establishes a loving relationship between him and his children. I reject the respondent’s submission that less weight should be given to that relationship because he has been absent whilst in prison. That may generally be the case but in this case there would be a hugely detrimental impact on the children if their father were not present in their lives. I have no doubt that the applicant will play a positive parental role in the future, taking into account the significant period of time until the children turn 18. There is no evidence of any direct negative impact on the children arising from the applicant’s prior conduct. Indeed, when the wife became aware of his drug taking, she ‘kicked him out’ of the house for a three- month period before his arrest in April 2018. Further, he said that he never took drugs at home. I consider that a long-term separation from the applicant would have a significantly detrimental impact on his children. There is no one else who can provide this parental role. The children need their father as a male role model when they are growing up. It is in the best interests of his children for the applicant to be released.
The applicant is the uncle of his sister’s children, four of whom are minors. Those children are aged 13, 15 and 17 (twins). The applicant has a strong relationship with these children because he helped his sister bring them up when their father left soon after the birth of the youngest child. He is like a second father to them and I consider that, if he were released, he would continue to play a parental role for them. I consider that being separated from the applicant would have a significantly detrimental impact on these children. There is no one else who can provide this parental role. It is in the best interests of these children for the applicant to be released.
This is a factor that weighs very heavily in favour of revocation of the cancellation decision.
Expectations of the Australian community – 13.3 of Direction 79
In YNQY v Minister for Immigration and Border Protection,[7] Mortimer J held that the expectations of the Australian community were inextricably linked to the other primary consideration about the protection of the Australian community, and that the expectations referred to in Direction 79 were those espoused in clause 13.3(1), rather than any objective expectations put forward by an applicant. This position has been affirmed by the Full Court of the Federal Court in FYBRv Minister for Home Affairs.[8]
[7] [2017] FCA 1466.
[8] [2019] FCAFC 185.
In exercising my discretion, I am also informed by the principle at paragraph 6.3(1) of Direction 79 that:
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.
The applicant has not been law abiding and he has shown disrespect to authority by his frequent offending. The Australian community expects non-citizens to obey Australian laws while in Australia. However, I do not consider the applicant’s offending to be so serious that any risk of similar conduct in the future is unacceptable. The applicant has failed to live up to the expectations of the Australian community, but I take into account that he is 34 years old and, having arrived at the age of 12, has lived the whole of his adolescence and his adult life in Australia. During that time he has successfully completed up to Year 10 of high school and he has obtained a forklift licence and undertaken a Certificate 3 course in automotive technology and a 12-month apprenticeship in construction and landscaping. He has also worked in the family restaurant which he hopes to take over if released. In all of these circumstances, I consider that this factor weighs moderately in favour of non-revocation of the cancellation decision.
Other considerations
In deciding whether to revoke the cancellation of the applicant’s visa, I must take into account the other considerations listed in Direction No. 79 but these are not exhaustive.[9]
[9] SZRTN v Minister for Immigration and Border Protection (2014) 63 AAR 243 [5].
International non-refoulement obligations
The applicant did not contend that he was owed non-refoulement obligations.
Strength, nature and duration of ties
In making my decision, Direction 79 requires that I consider the following factors:
·how long the applicant has resided in Australia, including whether the applicant arrived as a young child (noting that less weight should be given where the applicant began offending soon after arriving in Australia, and more weight should be given to time the applicant has spent contributing positively to the Australian community); and
·the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant arrived in Australia at the age of 12 and has been here for about 22 years. Through his education, work and the raising of his children he has contributed positively to the Australian community, though his frequent offending from a young age diminishes this as a factor in his favour.
The applicant has extremely strong family ties to Australia including his wife and children, his sister and her children, uncles and aunts and his parents. These immediate family members would be negatively impacted if he were returned to New Zealand. His father is 77 years old and his health is deteriorating. I was impressed by his father’s oral evidence when he explained how his only remaining son has helped him and how he needs that help more and more. He feels that he would not survive if his son were returned to New Zealand. His sister has six children of her own and has relied on the applicant in the past to help her.
The applicant has no relatives or friends in New Zealand. All his family and social ties are with Australians.
This is a factor that weighs heavily in favour of revoking the cancellation decision.
Impact on Australian business interests
No evidence or argument was advanced with respect to any impact on Australian business interests.
Impact on victims
Paragraph 14.4(1) of Direction 79 provides that I must consider the impact of a decision not to revoke on members of the Australian community, including victims of the applicant’s criminal behaviour, and the family members of the victim or victims where that information is available and the applicant being considered for revocation has been afforded procedural fairness.
I have not received any direct evidence with respect to the impact non-revocation would have on the victim of the applicant’s criminal behaviour and the victim’s family members. In the absence of such evidence, I cannot find this other consideration weighs in favour of, or against, revocation of the cancellation decision.
Extent of impediments if removed to home country
Direction 79 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to New Zealand in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
·The applicant’s age and health;
·Whether there are substantial language or cultural barriers; and
·Any social, medical and/or economic support available to them in that country.
Taking into account the above factors, I do not consider that the applicant would face any significant impediments if removed to New Zealand. He would not have any social support given his almost non-existent connections with New Zealand, but otherwise the extent of impediments is negligible.
Conclusion as to whether there is another reason to revoke the original decision
I have considered the specific circumstances relating to the applicant as part of my consideration whether to revoke the cancellation decision. I am now required to weigh up those considerations and, in doing so, I conclude that there is another reason to revoke the cancellation decision.
The primary considerations relating to the protection of the Australian community and the expectations of the Australian community weigh in favour of not revoking the cancellation decision, but I consider that those factors are outweighed by the interests of minor children and the strength, nature and duration of ties that the applicant has to Australia. I note that one primary consideration may outweigh other primary considerations.[10] The applicant is part of a very strong, supportive and loving family unit who have lived together in Australia for over 20 years. It is primarily because of this family that I consider he should remain in Australia. The family would be greatly impacted by his removal but at the same time they will support him and provide a great incentive for him to maintain his good behaviour. The applicant has lived in Australia for most of his life and in this circumstance, Australia affords a higher level of tolerance of criminal conduct.[11] The applicant has contributed to the Australian community in a positive way for some time; there would be devastating consequences for his minor children and other immediate family members; these are significant factors in favour of revocation.[12] I also take into account the independent and authoritative expert evidence[13] from the psychologist, Mr Kleynhans, that the prognosis for the applicant is good because he has addressed those factors that led to his previous offending.
[10] Direction 79 at 8(5).
[11] Direction 79 at 6.3(5).
[12] Direction 79 at 6.3(7).
[13] Direction 79 at 8(2).
Decision of the Tribunal
The decision of the Tribunal is to set aside the reviewable decision and to substitute a decision that the cancellation decision is revoked.

I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones

...........................[SGD].............................................
Associate
Dated: 12 February 2021

Date(s) of hearing: 2 and 3 February 2021

Advocate for the Applicant: Mr Kimani Boden

Solicitors for the Applicant: Starnet Legal

Advocate for the Respondent: Mr Oliver Morris

Solicitors for the Respondent: Clayton Utz

[2021] AATA 218

12 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Date(s) of hearing:	2 and 3 February 2021
Advocate for the Applicant:	Mr Kimani Boden
Solicitors for the Applicant:	Starnet Legal
Advocate for the Respondent:	Mr Oliver Morris
Solicitors for the Respondent:	Clayton Utz