Jamieson (Migration)

[2018] AATA 1060

Jamieson (Migration) [2018] AATA 1060 (23 March 2018)

CORRIGENDUM

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ryan Jamieson

CASE NUMBER:  1800371

DIBP REFERENCE(S):  CLF2018/1550

MEMBERS:Ann Brandon-Baker (Presiding)

James Lambie

DATE OF DECISION:  23 March 2018

DATE CORRIGENDUM

SIGNED:16 April 2018

PLACE OF DECISION:  Brisbane

AMENDMENT:  The following corrections are made to the decision:

The date of this decision ‘20 March 2018’ should be replaced with ’23 March 2018’.

Ann Brandon-Baker
Senior Member

James Lambie
Senior Member

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ryan Jamieson

CASE NUMBER:  1800371

DIBP REFERENCE(S):  CLF2018/1550

MEMBERS:Ann Brandon-Baker (Presiding)

James Lambie

DATE:20 March 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 23 March 2018 at 8:47am

CATCHWORDS
Migration – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – Extent and gravity of criminal offence – Recurrent terms of detention – Willingness to resume child’s care – Financial support by mother’s network – Engagement with drug activity – Rehabilitation efforts – Family support in New Zealand

LEGISLATION
Migration Act 1958, ss 116, 359, 359A

CASES

Abebe v Commonwealth (1999) 197 CLR 510
Botha v Minister for Immigration and Border Protection [2017] FCA 362
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 22 December 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 444 (Special Category) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(e) on the basis that the applicant’s presence in Australia is or may be, or would or might be, a risk to the safety of the Australian community or a segment of the Australian community. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. On 9 February 2018, the Tribunal issued a summons to the Commissioner of the Queensland Police Service seeking documents relating to the applicant’s criminal history. These documents were received on 15 February 2018. On 21 February 2018, the Tribunal wrote to the applicant pursuant to sections 359(2) and 359A of the Act to invite him to attend a hearing of the Tribunal and to respond to the information contained in those documents. On 7 March 2018, the Tribunal received material responding to the invitation, including submissions, references and supporting documentation. This material has been considered by the Tribunal.

4. The applicant appeared before the Tribunal via video link from the Yongah Hill Immigration Detention Centre to give evidence and present arguments. The Tribunal also received oral evidence from Ms Conteea Robinson.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(1)(e). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

   s.116(1)(e) - risk to Australian community or individual

7. A visa may be cancelled under s.116(1)(e) if the Minister or the Tribunal is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals.

8. As  mentioned in paragraph 3, the applicant was sent a copy of his Queensland person history and charge street provided by the Queensland Police Service under summons. The Tribunal put to the applicant that the information was relevant to the review because it may suggest that his presence in Australia is or may be, or would or might be, a risk to the safety of the Australian community or a segment of the Australian community. The Tribunal informed the applicant that it would discuss this information with him at the hearing and depending upon his response it may rely upon it in making an adverse decision.

9. The applicant has a long criminal history beginning in 2007 and includes the following convictions:

   a.Commit public nuisance;

   b.Obstruct police officer (8 counts);

   c.Serious assault of police officer acting in aid of a police officer;

   d.Possess dangerous drugs (multiple);

   e.Breach of bail condition (multiple);

   f.Wilful damage to property – April 2012 entered a dwelling and wilfully destroyed two televisions and a computer monitor;

   g.Assaults occasioning bodily harm whilst armed;

   h.Enter premises and commit indictable offence;

   i.Possess tainted property;

   j.Receive tainted property;

   k.Possess property suspected of having been acquired for the purpose of committing a drug offence (multiple);

   l.Not being endorsed to possess restricted drug;

   m.Possessing anything used in the commission of a crime (multiple);

   n.Supply dangerous drugs (multiple);

   o.Drunk and disorderly;

   p.Discharge weapon in a public place;

   q.Unlawful possession of vehicles;

   r.Unlawful use of vehicles;

   s.Wilful damage;

   t.Authority required to possess explosives;

   u.Discharge of weapon on private land without owner’s consent;

   v.Possess utensils or pipes.

10. The weapons offences occurred in 2015 and involved the applicant discharging a number of rounds from a pump action shot gun. After departing the scene the applicant evaded authorities for several days before being arrested as a result of a SERT tactical response.

11. The most recent offences for which he has been charged but not convicted were committed in 2017, and include the following:

    a.Stole registration plates

    b.Received tainted property (2 charges)

    c.Stole a caravan

12. The applicant claims that he had no knowledge that the caravan was stolen and was doing a friend a favour by towing it back to his place. He claims that his solicitor has told him that he will get off the current charges.  Given that the outcome of the proceedings on those charges are not known, the Tribunal gives no weight to the fact that the charges have been laid, other than to note the fact that the applicant is being held in immigration detention as a consequence.

13. It will become necessary to refer to some of these offences in more detail below.

14. The applicant is a 29 year old national of New Zealand.  His most recent Subclass 444 visa, issued on 19 April 2011, was cancelled by a Departmental delegate on 22 December 2017. The applicant first arrived in Australia in March 1994, at the age of 5 years, with his parents and brother.  When he was 8 years old, his parents separated and his mother returned to New Zealand, leaving the two boys to be raised by their father on the Gold Coast.  The applicant and his brother visited their mother regularly during school holidays.  He has not been to New Zealand since he was 18 or 19, although he stays in regular contact with her.  His mother, Ms Cleary, has provided a statement that she continues to live in New Zealand with her two teenage children from her subsequent marriage.

15. The applicant has three young children.   His daughter was born in November 2013.  His sons were born in March 2015 and December 2016.

16. He is separated from their mother, Ms M.  The children are presently being cared for by relatives and friends.  Material provided to the Tribunal in a number of statements provided in support of the applicant made reference to Ms M’s inability or unwillingness to care for the children.  Ms M did not give evidence and the Tribunal does not propose to canvass the range of allegations made against her by some of the witnesses.  The Tribunal does note that the issue of the children’s residence has not been judicially determined and that it is possible that it will be contested.

17. The Tribunal invited the applicant to address the subject of his criminal record, which began in 2007 when that applicant was 18.  He said that his earlier convictions happened at a time when he was very young and had a drug and alcohol problem.

18. Over the course of 2007 and continuing through to 2009, his offending behaviour escalated rapidly in seriousness and violence and, but for the effluxion of time since 2009, might by itself have raised issues concerning his potential threat to the community.  In particular, his record discloses offences of assault occasioning bodily harm whilst armed and entering premises to commit an indictable offence for which he was sentenced to a suspended term of imprisonment.

19. On 20 August 2009, the applicant was sentenced to 6 months imprisonment on a number of counts of assaulting and obstructing police officers.  He was admitted to parole the same day.  The applicant’s statement to the Tribunal was that, while on parole, he sought to stay out of trouble.  He took up kung fu and credits this with being a diversion from criminal activity.  The applicant accepted when questioned that any diversionary benefit was short-lived and that admitted he started smoking marijuana again and selling “a little bit of ice and pot”.

20. The material before the Tribunal suggests that this is a considerable understatement.

21. The applicant was arrested on 9 August 2011 in possession of amphetamines and MDMA, together with tainted property, 34 boxes of pseudoephedrine medication, 18 oxycontin tablets and some drug utensils. 

22. On 9 May 2012, the applicant was arrested in an unregistered vehicle bearing stolen licence plates.  The vehicle was found to contain 116 grams of cannabis and a quantity of cash suspected of being the proceeds of supplying drugs.  He was convicted of these offences and sentenced to a suspended term of imprisonment of 3 months.

23. On 27 August 2012 (five weeks after his court appearance in respect of the matters referred to in paragraph 19), the applicant was arrested at his home and charged with supplying and possessing dangerous drugs, as well as breaching his bail conditions.  The evidence produced to the court included numerous details of supply and a pouch containing $1775.00 in cash.  The applicant was subsequently sentenced to 8 months imprisonment and served 64 days before being released on parole.

24. On 1 September 2012, while detained at the Southport Watchhouse on the charges described in paragraph 23, the applicant was charged with receiving tainted property.

25. On 21 February 2013, the applicant was involved in a brawl in licensed premises during which he struck another person with a barstool and fled from police.

26. On 1 March 2013, the applicant was charged with 2 counts of producing, 2 counts of supplying and 2 counts of possessing dangerous drugs and one count of possessing scales and zipseal bags in connection with the production of dangerous drugs.  A search of his premises found, among other things, a taser and $6565.00 in cash.  He went to trial in September 2014, was convicted and sentenced to 18 months imprisonment.  He was released on parole on 18 March 2015, having served 6 months.

27. On 20 June 2014, the applicant was arrested for breach of a bail undertaking.

28. On 27 June 2014 (while awaiting trial on the matters referred to paragraph 26), the applicant was arrested for unlawful possession of drugs, weapons and items used in the production of methamphetamine.

29. On 22 May 2015 (some 2 months after having been released on parole), the applicant was arrested in respect of an incident at Helensvale on 19 May, in which he discharged a number of rounds from an illegal shortened pump action shotgun. Police were not able to locate him until 22 May.  A SERT tactical response was considered necessary to effect the arrest.  He was convicted on 8 April 2016 of discharging a weapon in a public place, breach of bail condition, unlawful possession of vehicles, unlawful use of motor vehicles, wilful damage, unauthorised possession of explosives, discharge of a weapon on private land without the owner’s consent and possession of a dangerous drug.  In addition, he was resentenced in respect of a number of previous offences subject to suspended terms of imprisonment.  In all, he was sentenced to 18 months imprisonment, serving 256 days (reflecting time served until the date of trial).

30. On his release from custody, the applicant moved from the Gold Coast area to the northern suburbs of Brisbane in an effort, he says, to detach himself from bad influences.  He started his own concreting business and claims that he no longer uses drugs.  Between April 2016 and his arrest on 22 November 2017, the applicant had not come to the adverse attention of the police. The applicant claims that he has now turned his life around and is wholly committed to raising his family and building his business.

31. The applicant claims he has turned his life around and now has his own business and financially supports his three very young children who are aged between 14 months and 4 years who had been living with him and over whom their mother does not have custody.

    The ground for cancellation exists

32. The Tribunal has carefully considered whether the ground for visa cancellation in s. 116(1)(e)(i) of the Act exists. The applicant’s criminal history is extensive and serious, with convictions between 2007 and 2016. These have been more fully discussed above. He has served three terms of actual imprisonment. The gravity of his offending has increased over time, culminating in the use of a SERT team to effect his arrest in 2015 while he had been on the run for 3 days.

33. The question is whether the applicant’s conduct supports a conclusion that his presence in Australia ‘is, or may be, or would, or might be a risk to the health, safety or good order of the Australian community or a segment of the Australian community.’  The Tribunal considers that the applicant’s extensive criminal offending has caused harm to the health, safety and good order of the community and that, absent any strong countervailing considerations, his continued presence may, or would be, or might be a continuing such risk.

34. The evidence of the applicant and the witnesses on his behalf, as to the existence of grounds for visa cancellation, are as follows.  It was submitted that the applicant’s early offending arose from his youth and his drug and alcohol abuse.  Later offences were a result of more serious drug taking behaviour, relationship problems and undiagnosed or misdiagnosed psychological/psychiatric conditions.  The drug supply and production and, to some extent, weapons charges stemmed from the lifestyle associated with marijuana and methamphetamine use.  The offences in 2015 arose from suicidal ideation, stemming from, combined with, or heightened by methamphetamine use, an overdose of prescription medication and family problems.

35. In the view of the Tribunal, the evidence of the applicant and the witnesses sought to downplay the seriousness of the offending.  As already noted, the applicant dismissed the drug supply and production convictions as merely incident to a drug-taking lifestyle.  The violent incident in the licensed premises and the various charges of obstructing and assaulting police were described as ‘silly’.  The applicant did not seem to consider the presence of his daughter in premises treated by the police as a drug laboratory (see paragraph 41 below) as remarkable.  The witnesses all sought to downplay the seriousness of the offending.  They variously describe the applicant’s record as the result of a troubled youth, as caused by his former partner’s drug use, as relatively minor past indiscretions, as occurring ‘some years ago’, as ‘silly and illegal choices in his teenage years and into his twenties’, as ‘misguided loyalties to others’, or as stemming from bipolar disorder.  Some make no mention of his offending behaviour at all.  It is perhaps understandable that those seeking to assist him might hope to minimise his record but, to the extent that they might be relied upon as an insight to the applicant’s conduct, the Tribunal accords the statements only very limited weight.  In respect of the applicant’s own evidence, the Tribunal cannot be satisfied that, aside from the applicant’s sorrow for the consequences of his behaviour, he shows any remorse for the offences themselves or for their impact on others.

36. The Tribunal had regard to the extent to which the applicant’s psychological or psychiatric conditions may have affected his offending behaviour.  In the absence of any expert evidence, it is difficult to put any weight on claimed diagnoses or misdiagnoses.  The applicant’s evidence, for example, is that at the time of the firearms offences in May 2015, he was being treated for [a number of mental] disorder.  He now says that these conditions were drug-induced and that he has [a] disorder.  In any event, he is not taking medication at all.  His father’s statement is to the effect that he has been recently diagnosed with [a] disorder and that he is persisting with medication.  In the circumstances, the Tribunal gives some weight to the proposition that the applicant suffers from some sort of psychological condition.  However, whether this assists the applicant is questionable given that none of the proposed diagnoses are necessarily helpful to any claim that he might not present a threat to the community and that, on his own evidence, he is not taking any medication.

37. On balance, after careful consideration, the Tribunal gives more weight to the evidence which suggests the grounds for visa cancellation exists than it gives to the evidence to contrary. Accordingly, the Tribunal finds that the applicant’s presence in Australia might be a risk to the safety of the Australian community or a segment of Australian community. The Tribunal is therefore satisfied that the ground for cancellation in s. 116(1)(e)(i) exists. As that ground does not require mandatory cancellation under s. 116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.

    Consideration of discretion

38. There are no matters specified in the Act or Regulations that are required to be considered in relation to the exercise of the discretion to cancel the visa.  However, is considering whether to exercise its discretion to cancel the applicant’s visa, the Tribunal has had regard to the relevant circumstances including, but not limited to, matters identified in the Department’s Procedures Advice Manual PAM3 ‘General visa cancellation powers’.

39. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled.  In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]:

    There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit:  see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33].

1. The Tribunal questioned the applicant closely on the matter of the care of the children.  It noted that the police evidence in relation to the charges mentioned in paragraph 28 was that his infant daughter was present when the warrant was executed and that she (with her parents) was evacuated from the premises while the police Illicit Laboratory Investigation Team was required to attend.  The applicant accepted that that was the case.  On inquiry about the fact that weapons were also located on the premises, the applicant said that the reference was to two butterfly knives he had purchased on eBay and that they were in a display case.

2. The Tribunal also questioned the applicant on the incident described in paragraph 29, at which time he had two infant children.  He said that, at that time, he was separated from Ms M and the children were not present.  He had only acquired the firearm the week before.  He was feeling suicidal because he had not seen the children. In addition to taking methamphetamine, he had overdosed on prescription medication.  The medication had been prescribed for [different mental disorders]. He now believes he was misdiagnosed.  The psychiatrist he now sees believes that the symptoms were drug-induced and that the better diagnosis is [another] disorder.  He says he has been clear-headed since he stopped taking drugs.

3. He and Ms M separated (he says permanently) about two weeks after his release on parole in April 2016.  His third child was born in late December that year.

4. The Tribunal heard from the applicant about the residence and care arrangements for the children which have been very unsettled.

5. Child A, born in November 2013, was 7 months old at the time of the applicant’s arrest referred to in paragraphs 28 and 32.  She was 10 months old when the applicant was imprisoned for the second time (see paragraph 26) and 16 months old when he was released.  During this time, she lived with her mother.  She was 18 months old when the applicant was returned to custody and 2 years and 5 months old when he was released.  The mother left about 2 weeks later taking her daughter with her.  A was returned to live with the applicant in about November 2016, where she stayed until the applicant’s arrest in November 2017, at which time she was 3 years old.  After November 2017, she stayed with a family friend, Ms Emma Thompson, and subsequently with her maternal grandparents.

6. Child B was born in March 2015, some 3 days after the applicant’s release from his second term of imprisonment.  The applicant saw very little of his son (the couple having separated) before he was returned to custody in May of that year.  At about that time, Ms M sent B to live with her sister, Conteea Robinson.  The Tribunal took evidence from Ms Robinson.  Her account, which also forms part of the applicant’s statement, is that Ms M called Ms Robinson to say that she could not cope and that Ms Robinson should come and collect B.  Ms Robinson, who was in hospital at the time, discharged herself and found B alone in his bouncer outside Ms M’s house by the front door.  Ms Robinson has effectively cared for B all his life:  on release from prison in 2016, the applicant moved into the Robinson household.  Ms Robinson has 4 children of her own aged between 2 and 12 and suffers from a medical condition.

7. Child C was born in December 2016.  The applicant’s statement is that he and Ms M had separated for the final time in April 2016.  He says that he found out Ms M planned to have C adopted without his knowledge or consent because she and her family could not cope with another child.    The applicant asked Ms M to let C live with him, to which she agreed.  Since November 2017, C has been living with another family friend, Ms Evans.

8. Statements were provided to the Tribunal in support of the applicant’s responsible parenting of his children.  In addition to the evidence of Ms Robinson, statements were received from Timothy Hodge, Steven Skilton, Charl Coetzee, Sarah Walker, Sam Alaia, Renee Ruck, Anne-Marie Cleary (the applicant’s mother), Khama Klein, Kathleen Unwin, Glen Wilkie, Michael Jamieson (the applicant’s father), Kathryn Campbell (the applicant’s current partner), Emma Thompson, Jade Stewart, Dianne Jamieson (the applicant’s grandmother) and Carl Jamieson (the applicant’s brother).  The applicant also nominated John Bucanic, a police officer in the Child Protection Unit, to provide evidence in relation to the situation with the children’s mother.  He was unavailable to give evidence at the hearing.

9. In addition to the material provided in his support, the Tribunal noted that the applicant is in the process of applying to the Federal Circuit Court for a residence order.  He has obtained a certificate from the Strathpine Family Relationship Centre that his matter is not appropriate for family dispute resolution (FDR).  He told the Tribunal that the reason for the issue for the certificate was that Ms M was not willing to participate in FDR.  Accordingly, the matter can now proceed to the Court for determination.  The Tribunal noted that Ms M’s unwillingness to participate in FDR may indicate that she intends to contest the matter of residence.  However, given the lack of material before it on that issue, the Tribunal can give very little weight to the issue of the certificate.

10. The Tribunal has carefully considered the application to this matter of the United Nations Convention on the Rights of the Child (CROC) and, as is relevant to the family unit, the International Covenant on Civil and Political Rights (ICCPR).  The Tribunal acknowledges that the best interests of the child must be treated as a primary consideration by administrative decision makers.  The Tribunal has done so in this matter and elevates the weight afforded to the evidence which is suggestive of hardship that might be faced by the applicant and his children and which weighs against the cancellation of the visa.  The Tribunal also notes that this primary consideration may be balanced against other considerations.

11. The situation of the applicant’s children is a complicated matter.  There is no doubt that the applicant has accepted responsibility for them and provided parental care for a period of between 12 and 17 months in between periods of incarceration.  It is obviously considerably less than ideal that, at present, the three children are living separately.

12. The Tribunal affords considerable weight to the applicant’s claimed willingness to resume the care of the children.  In this he is supported by the statements of the witnesses, to which the Tribunal has due regard.  The Tribunal also gives weight to the evidence before it that the mother is unable or unwilling at present to assume any parental responsibility.

13. This, however, only addresses part of the issue.  The Tribunal must be satisfied whether, and to what extent (including the weight that must be given to other considerations), the best interests of the children are affected by the applicant either remaining in Australia or returning to New Zealand. 

14. It must be noted that the children have so far spent only a fraction of their lives in the care of the applicant.  For the period they were living with the applicant, most of their actual care was provided by Ms Robinson.

15. If the applicant were to be living independently, the evidence is that he must be absent from the family home from early in the morning in order to conduct his concreting business.  The Tribunal has had regard to the statement provided by the applicant’s current partner, Ms Campbell, but observes that she has been his partner for only 2 months and that she does not attest to any assistance she might be able to provide.

16. It must also be noted that the applicant was engaging in serious drug activity, including production, when A was very young and resident with him.  Because it has reservations about the applicant’s claimed rehabilitation (discussed below), the Tribunal gives weight to the risk posed to the children by the applicant’s record of criminal behaviour.  It also gives weight to the fact that it is faced with contradictory and unsatisfactory evidence about the applicant’s state of mental health, which is strongly suggestive of the existence of a disorder but which is apparently not medicated. 

17. Finally, the Tribunal has considered the prospects for the children’s long-term care.  At present, they are distributed among the mother’s friends and family.  The Tribunal harbours doubts about the sustainability of B continuing to live with his aunt, Ms Robinson, but notes that she has provided everything to date that corresponds with maternal care.  The applicant has been unable, for whatever reason, to provide an independent residence for them since his last release from custody.  The children therefore have a network of support stemming from their mother’s side which has been, so far as can be determined from the evidence, sufficient for their care.  The applicant has sought to play a paternal role which has been limited by his recurrent terms of detention and his capacity to provide financial support.  The Tribunal considered the financial impact on the children should the applicant be returned to New Zealand.  The evidence before it was that the financial support he has been able to provide to date has been limited and that the greater part of the material and financial support for the children has come from the mother’s network.  If the applicant returns to New Zealand and is able to establish his business there, it would be reasonable to expect that his capacity and willingness to provide financial support to the children would be relevant to any parenting orders or other arrangement he might then seek to advance.  This evidence does not weigh in favour of or against cancellation.

18. The Tribunal carefully considered how the best interests of the children might be affected by them not being able to see their father and the absence of a father figure in their life were the applicant be returned to New Zealand and not be able to take the children with him.  While this may cause some hardship in the short term, there is no legal or procedural difficulty in his making an application for the children to reside with him in New Zealand once he becomes settled and, presumably, is able to demonstrate his rehabilitation.  The best interests of the children would be considered in the relevant forum at that time.  If he is successful in such an application, he and the children would have the benefit of the support of his mother, Ms Cleary.  

19. On the evidence available to it, the Tribunal considers the best interests of the children to be finely balanced.  After careful consideration, it considers that the risk to the children’s interests from the applicant re-offending, even if that risk is low, is unacceptable.  The Tribunal finds that the best interests of the children would not, on balance, be adversely affected by the cancellation of the applicant’s visa.  On the evidence before it, the Tribunal considers the weight to be given to the best interests of the children tends not to factor against the cancellation of the applicant’s visa.

20. The Tribunal affords some weight to the evidence of the applicant and his witnesses as to the efforts he has made in rehabilitation.  The statements are largely to the effect that the applicant has taken responsibility for his children, is a devoted father and that he has sought to provide a stable home for them.   He has also sought to turn his life around by starting his own concreting business and turning all of his energies to that. 

21. The weight these facts are given is subject to countervailing considerations.  The applicant’s claimed rehabilitation has occurred over a short time frame relative to length of the offending behaviour.  He was living at the Robinsons’ residence for the whole time he was out of custody.  The Tribunal noted, and the applicant agreed, that this has been quite an imposition on the Robinson family, given the size of that family and Ms Robinson’s ill-health.  Residing with his sister-in-law’s family provides an artificial environment unconducive to drug use and criminal conduct which, while undoubtedly beneficial to the applicant does not necessarily provide a good guide to his conduct when he is required to live independently.

22. Such weight that can be given to the applicant’s efforts at rehabilitation is limited by the brevity of those efforts against the length and seriousness of his offending behaviour.  The rehabilitation process is by no means complete.  Services to continue his rehabilitation would be available to the applicant in New Zealand.  The Tribunal notes that no professional medical or psychological evidence was before it to suggest that the applicant would suffer psychological hardship if the visa is cancelled and the applicant returned to New Zealand.  It does not accept suggestions to the contrary from witnesses who are unqualified in these fields.

23. The Tribunal accepts that there is no evidence of adverse past or present behaviour by the applicant towards the Department of Home Affairs, and that nobody else is attached to his visa who would receive a consequential visa cancellation if his own visa were cancelled.  There are no extenuating circumstances beyond the applicant’s control that led to the grounds for visa cancellation existing.  There is no evidence before the Tribunal that Australia’s non-refoulement obligations would breached as a result of the visa cancellation.  These matters weigh neither in favour of, nor against, cancellation of the visa.

24. The Tribunal accepts that if the applicant’s visa is cancelled he would be an unlawful non-citizen, remain in immigration detention, be able to make only limited further visa applications in Australia, be liable to removal from Australia and likely face difficulties in obtaining a new Australian visa in the future.  The Tribunal places some weight on the evidence as to these matters and finds that they weigh against cancellation of the visa.

25. The applicant has resided in Australia since 1994 when he arrived at the age of 5.  The Tribunal accepts that he will face emotional and financial hardship if his visa is cancelled from the disruption to his familial, relationship and social networks.  Some weight is attached to these considerations, which weigh against the cancellation of the visa.  However, that weight is limited by the evidence of the applicant and his mother of the existence of family support in New Zealand. 

26. The Tribunal accepts the applicant’s evidence that he has established a business in Australia and at one time employed others.  Some weight is accorded to this evidence and the Tribunal finds that it weighs against cancellation of the visa.  The weight the Tribunal accords this evidence is reduced by the applicant’s evidence that it would be a simple matter to re-establish a concreting business in New Zealand and that the capital cost is low.  This consideration reduces the weight to be given to the prospect of financial hardship.

27. The Tribunal must balance the factors in favour of and against the cancellation of the applicant’s visa.  Several factors have been found by the Tribunal to weigh against cancellation.  However, the applicant’s lengthy period of criminal offending is a matter of grave concern for the Tribunal, as are the attempts to downplay the seriousness of this offending and the limited scope of the applicant’s rehabilitation to date.

28. The Tribunal has carefully reflected upon the factors in favour of and against the cancellation of the applicant’s Subclass 444 visa.  The Tribunal has been especially cognisant of the best interests of the children as a primary consideration, which is, on balance, broadly neutral on the question of cancellation.  The extent and gravity of the applicant’s criminal history weigh in favour of the visa cancellation.  On balance, therefore, the Tribunal finds that the factors in favour of cancellation of the applicant’s visa outweigh those to the contrary.

29. Considering the circumstances as a whole, the Tribunal concludes that the visa should be cancelled.

    DECISION

30. The Tribunal affirms the decision to cancel the applicant’s Subclass 444 (Special Category) visa.

    A B Baker
    Senior Member

    
    

    James Lambie
    Senior Member