JEFFREY CHADWICK and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2012] AATA 529
[2012] AATA 529
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/2354
Re
JEFFREY CHADWICK
APPLICANT
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT
DECISION
Tribunal Mr R G Kenny, Senior Member
Date 13 August 2012 Place Brisbane The application lodged by Mr Chadwick on 12 June 2012 for review of the decision dated 16 May 2012 is dismissed for want of jurisdiction.
..............[Sgd].........................................
Mr R G Kenny, Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Class TY Subclass 444 Special Category (temporary) visa – Applicant a citizen of New Zealand – Conviction and custodial sentence for three years for serious offences – Applicant in migration zone – Cancellation of visa – Service of cancellation notice while in custody – Deemed receipt of notice – Application for review of decision out of prescribed time – No discretion to extend time – No jurisdiction to hear application – Application dismissed
IMMIGRATION AND CITIZENSHIP – Class TY Subclass 444 Special Category (temporary) visa – Applicant a citizen of New Zealand – First entry to Australia in 2002 when aged 31 years – Conviction and custodial sentence for three years for serious offences – Applicant in migration zone – Cancellation of visa -– Failure to pass character test – Discretion to cancel visa – Primary and other relevant considerations – Protection of Australian community favours cancellation of visa
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 42A
Migration Act 1958 (Cth) ss 5, 499, 500, 501, 501G
Migration Regulations 1994 (Cth) reg 2.55
CASES
Matete v Minister for Immigration and Others [2008] FMCA 573
Ngo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1594
Re Eggu and Minister for Immigration and Citizenship [2010] AATA 1003
Re Tay v Minister for Immigration & Citizenship (2010) FCR 163
Re Wilson and Minister for Immigration & Citizenship [2011] AATA 325SECONDARY MATERIALS
Direction [No. 41] – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Mr R G Kenny, Senior Member
13 August 2012
THE APPLICATION
On 12 June 2012, the Administrative Appeals Tribunal (“the Tribunal”) received an application form from Jeffrey Chadwick for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the respondent”), dated 16 May 2012, cancelling his Class TY Subclass 444 Special Category (temporary) visa (“the visa”). The delegate’s decision was made under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).
Under s 501(2) of the Act:
The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the “character test” within the meaning of that section. In the present case, the relevant circumstance is that specified in s 501(6)(a) of the Act, namely, “the person has a substantial criminal record”. Under s 501(7) of the Act, five alternative circumstances are specified in which, for the purposes of the “character test”, a person has a “substantial criminal record”. In the present case, the relevant circumstance is that specified in s 501(7)(c) of the Act, namely, that “the person has been sentenced to a term of imprisonment of 12 months or more”.
It is not disputed that Mr Chadwick has been sentenced to a term of imprisonment of more than 12 months or that he has a substantial criminal record under s 501(7) of the Act. Neither is it disputed that, accordingly, Mr Chadwick does not pass the character test. In so far as the merits of Mr Chadwick’s application are concerned, the issue is whether the discretion in s 501(2) of the Act should be exercised to cancel the visa.
However, Mr Tigiilagi Eteuati, for the respondent, submitted that Mr Chadwick’s application did not satisfy the time-limits as provided for in ss 500, 501, 501G of the Act and reg 2.55 of the Migration Regulations 1994 (Cth) (“the Regulations”). For that reason, he submitted, the Tribunal did not have jurisdiction to determine Mr Chadwick’s application and it should dismiss it under s 42A of the Administrative Appeals Tribunal Act1975 (Cth) (“the AAT Act”).
JURISDICTION
In accordance with s 501G(1) of the Act, where a person’s visa is cancelled under s 501(2) of the Act, the Minister must give the person a written notice which sets out the decision, specifies the provision under which the decision was made, sets out the effect of that provision and sets out the reasons for the decision.[1] Further, the written notice must advise the person of the right to have the decision reviewed by the Tribunal, state the time in which the application for review may be made, state who can apply to have the decision reviewed and state where the application for review can be made.[2] Under s 501G(3) of the Act, the notice must be given in the prescribed manner which, in this matter, is set out in reg 2.55 of the Regulations. In so far as it is relevant in this matter, that provision reads:
[1] See s 501G(1)(a) –(e) of the Act.
[2] See s 501G(1)(f) of the Act.
2.55 Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation
(1) This regulation applies to:
…
(b)the giving of a document under subsection 501G (3) of the Act relating to a decision to cancel a visa under subsection 501 (1) or (2) or 501A (2) or section 501B or 501F of the Act;
…
(4) Subject to subregulation (4A), for a document mentioned in paragraph (1) (b):
…
(b)if the person has held the visa for at least 1 year when the document is to be given:
(i) Immigration must try to find the person; and
(ii) the Minister must give the document in one of the ways mentioned in subregulation (3).
The ways of giving the document to the applicant in this matter are set out in reg 2.55(3) of the Regulations. These include:
…
(c) by dating it, and then dispatching it:
(i) (within 3 working days (in the place of dispatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means;
to the person’s last residential address, business address or post box address known to the Minister;
As to receipt by the person, reg 2.55(7) of the Regulations reads:
If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document:
(a)if the document was dispatched from a place in Australia to an address in Australia — 7 working days (in the place of that address) after the date of the document;
…
Under s 500(6B) of the Act, provision is made for the time limit within which an application for review of a decision under s 501(2) of the Act is to be made. It reads:
If a decision under section 501 of this Act relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.
It is not disputed that the “migration zone” in this matter includes Australia.[3] Mr Eteuati submitted that notice of the decision to cancel Mr Chadwick’s visa was made on 16 May 2012, that the notification of that decision was set out in a letter, dated 21 May 2012, and that the letter was sent by pre-paid post, on 22 May 2012, to Mr Chadwick’s last known residential address, that being Wolston Correctional Centre, Locked Bag 2000, Sumner Park, Queensland 4074. Mr Eteuati submitted that, under reg 2.55(7) of the Regulations, Mr Chadwick must be taken to have received that letter seven working days after the date of the document. He submitted that this was 30 May 2012. Further, Mr Eteuati submitted that, under s 500(6B) of the Act, the time for Mr Chadwick to seek review of the cancellation decision expired 9 days after the deemed date of receipt of 30 May 2012; that is on 8 June 2012. Mr Eteuati submitted that Mr Chadwick’s review application form was not received by the Tribunal until 12 June 2012 and that, therefore, his application for review was not valid and should be dismissed under s 42A(4) of the AAT Act.
[3] See s 5(1) of the Act.
In evidence were statements from Mr Timothy McAllister, dated 27 July 2012, and Joanne Jennings, dated 2 August 2012. Mr McAllister is employed as the Team Leader, Customer Services at Office Services of the respondent department. Ms Jennings is the Manager, Team B, National Character Consideration Centre with the respondent department. On the basis of their statements and attachments annexed thereto, I am satisfied that the notice of cancellation of Mr Chadwick’s visa was sent to him at the correct address[4], in the manner and in the time-frames submitted by Mr Eteuati.
[4] For service on a person in prison, see Ngo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1594 and Matete v Minister for Immigration and Others [2008] FMCA 573.
In his application for review, Mr Chadwick stated that he received the letter of notification on 6 June 2012, rather than 30 May 2012. However, in his evidence, he was unsure of this and conceded that he may have received it at an earlier time. He said that, on receipt of the letter, he contacted the Legal Aid Office for assistance and engaged in a video conference with personnel from that office. Mr Chadwick was not certain of the date of that conference but said that, while he was advised by the Legal Aid Office that it would be unable to represent him at the Tribunal hearing, it forwarded, by facsimile, a copy of the application form for seeking review by the Tribunal. The form indicates that it was completed by Mr Chadwick on 9 June 2012. Mr Chadwick sent it, by facsimile, to the Tribunal. A copy of his application form was in evidence and it includes a notation that it was faxed on 12 June 2012. It also bears a Tribunal stamp to indicate receipt on 12 June 2012.
I am satisfied that the respondent forwarded the notice of cancellation of Mr Chadwick’s visa in accordance with the time-frames required under the Regulations, as identified above, and that, thereunder, Mr Chadwick must be taken to have received the notice on 30 May 2012.[5] I am also satisfied that Mr Chadwick did not lodge his application to review the cancellation decision before 12 June 2012 and, therefore, not within the time-frame of nine days after receipt of the notice as provided for in s 500(6B) of the Act. There is no discretion under the Act or the Regulations for the lodgement date to be extended.[6] Neither does the AAT Act enable an extension of time because the relevant provisions in that regard do not apply in matters of this kind.[7]
[5] For the operation of the provision deeming receipt of a notice, see Tay vMinister for Immigration & Citizenship (2010) FCR 163 and Re Wilson and Minister for Immigration & Citizenship [2011] AATA 325.
[6] See, for example, Re Eggu and Minister for Immigration and Citizenship [2010] AATA 1003.
[7] These are s 29(7) to (10) of the AAT Act which are excluded by s 500(6B) of the Act.
For dismissal of Mr Chadwick’s application, Mr Eteuati referred the Tribunal to s 42A(4) of the AAT which reads:
(4) If:
(a) a person makes an application to the Tribunal for a review of a decision; and
(b) the person is unable to show, within such time as is prescribed after being notified in writing by the Registrar or a Deputy Registrar that the decision does not appear to be reviewable by the Tribunal, that the decision is so reviewable;
the Tribunal may dismiss the application without proceeding to review the decision.
As I read that provision, it applies only where the Registrar or Deputy Registrar of the Tribunal has notified a person in Mr Chadwick’s situation that a decision does not appear to be reviewable by the Tribunal. It does not cast a duty on the Registrar or Deputy Registrar to so notify the person in those terms but has application where the Registrar or Deputy Registrar has done so. No such notice in writing was given to Mr Chadwick in this matter. Nevertheless, I am satisfied that, because it was out of time, no valid application was made by Mr Chadwick and the Tribunal does not have jurisdiction to review the decision of the respondent dated 16 May 2012. Accordingly, the application in the form lodged by Mr Chadwick on 12 June 2012 for review of that decision is dismissed.[8]
[8] For the same approach, see Eggu v Minister for Immigration and Citizenship [2010] AATA 1003 at (55) per D.P. Forgie.
MERITS OF THE APPLICATION
At the hearing, both parties made submissions on the issue of jurisdiction and also on the substantive issue of whether the matter was one in which the discretion to cancel the visa should be exercised. I indicated to them that I would make reference to the merits of Mr Chadwick’s application. If the Tribunal were seised with jurisdiction to hear Mr Chadwick’s application for review, I am satisfied, for the reasons set out below, that this is an appropriate case where that discretion would be exercised.
Evidence
Mr Chadwick was born in New Zealand on 22 May 1971. He came to Australia on 2 December 2002 when he was 31 years of age.[9] He compared his level of schooling in New Zealand as the equivalent to year 10 in Queensland. Before his term of imprisonment commenced in 2011, he was engaged in full-time employment in the Gladstone area as a process technician and, while he was on bail, as a labourer/machine operator. His parents and two siblings, as well as eight uncles/aunties, fourteen cousins and three nephews/nieces, have lived in Australia since before he arrived. He has three uncles/aunties and ten cousins in New Zealand. His wife and their eldest child travelled to Australia with him and, since then, two further children were born to them. His wife and children returned to New Zealand after he was arrested for offences in 2010. Mr Chadwick described himself as being separated from his wife but expressed a hope that they would become reconciled in the future. He described himself as being on “good talking terms” with his wife and keeps in contact with his children by telephone and letters and has made child support payments in respect of them.
[9] I note that he had also entered Australia for short periods of stay twice previously.
Mr Chadwick’s evidence was that he had been diagnosed with depression in his early 20s in New Zealand. This improved for a short time after he arrived in Australia but returned afterwards. He has taken Prozac as medication for the condition.
A statement of Mr Chadwick’s criminal record reveals that he was convicted and sentenced in the Gladstone District Court on 25 August 2011 as follows:
Offence
Penalty
Indecent treatment of child under 16 (take photographs etc) child under 12 years (15 charges).
On all charges: imprisonment 3 years
Possessing child exploitation material
Imprisonment 18 months
Use a carriage service to access
child pornography material
Use a carriage service to make child pornography material available
On both charges: imprisonment 6
months
In sentencing Mr Chadwick in the District Court, Judge Wall QC ordered that all terms of Mr Chadwick’s imprisonment were to be served concurrently and that Mr Chadwick would be eligible for parole on 25 August 2012. The following comments were included in the sentencing remarks:[10]
[10] The Queen v Jeffrey Paul Chadwick, Gladstone District Court, 25 August 2011.
… these are extremely serious offences. … the most serious offences are those involving the taking of photographs of children.
… Your offending … was deliberate, prolonged and persistent. Seven different children were involved. Many photos were taken and they were taken on 15 separate occasions.
The children were at your house to play with your children. You were effectively in a position of trust as far as they were concerned and their parents trusted you to look after their children. Their parents trusted you not to interfere with their children. Their parents certainly trusted you not to commit offences such as the present in relation to their children.
The children appear to have been made to pose in an explicit way by you for the purposes of sexual gratification for you as an individual at their expense. A degree of corruption is involved. …
…
You were sufficiently aware of what you were doing to not do it to your own children, but to take advantage of the children of others. I consider that you did, in fact, realise that what you were doing was indecent, inappropriate, improper and unlawful. Yet, notwithstanding that, you continued to engage in such activity.
…
… your behaviour so far as the children the subject of the photographs you took is concerned, is properly described as predatory, premeditated and persistent. Your behaviour was disgraceful and is deserving of condign punishment.
… I am, however, bound by decisions of the Court of Appeal which limit the extent of the sentences I can impose on you, as I said, notwithstanding my personal inclination to impose a heavier sentence.
Reference was also made in the judgement to victim impact statements which revealed the detrimental effects that Mr Chadwick’s conduct had on the children and their parents.
There were statements in evidence from members of Mr Chadwick’s family, including his father who also gave evidence. In summary, that evidence was to the effect that Mr Chadwick has strong family connections and sound prospects of employment in Australia and that he would face adjustment difficulties if he were to return to New Zealand. It was also noted that his mother is suffering from cancer. They expressed confidence in their belief that Mr Chadwick would not commit any further criminal offences. Psychology and counsellor reports, prepared prior to Mr Chadwick’s convictions and sentence, described him as having a history of depression, as being significantly anxious as well as cognitively and emotionally immature and as having little confidence in social situations. Those reports also described him as having become aware of the inappropriateness of and the consequences of his behaviour such that he would be unlikely to reoffend.
A report completed by Queensland Corrective Services on 10 November 2011 noted that Mr Chadwick had completed some introductory courses and was to undertake a Sex Offender Program Assessment to determine the most appropriate intervention for his behaviour. Mr Chadwick’s evidence was that he had commenced and almost completed that program. He said that he had nowhere specific to live or work in New Zealand although he had been employed for fifteen years with one employer in Nelson before leaving for Australia.
Mr Chadwick took issue with some of the sentencing remarks listed above. He denied that the photographs he took were for his personal sexual gratification and that he had not asked the children to “pose” for him. He said that he thought of them as models and was practicing carrying out a long-held ambition to be a men’s magazine photographer. He agreed that he had not taken photographs of his own children and had not shared his photographic or internet access activities with his wife because he believed that she would have considered it to be inappropriate.
Legislation
The Minister has issued Direction 41[11] (“the Direction”) under s 499 of the Act which is binding on those, including the Tribunal,[12] making decisions under s 501 of the Act. Part A of the Direction provides directions on the application of the character test set out in s 501(6) of the Act. Part B provides directions on the primary considerations, which must be taken into account in every case,[13] and other considerations, which are to be taken into account where relevant,[14] in determining where it is appropriate in the specific circumstances of the case to exercise the discretion to cancel the visa under s 501(2) of the Act.
[11] Direction [no.41] – Visa refusal and cancellation under s501, dated 3 June 2009, commenced on 15 June 2009.
[12] See s 499(2A) of the Act.
[13] See paras 9 and 10 of the Direction.
[14] See paras 9 and 11 of the Direction.
The objectives of the Act are set out in para 5.1 of the Direction which reads:
5.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into and presence in Australia of non-citizens.
(2) In this regard, in order to safeguard the Australian community and to enable it to effectively discharge its duties and responsibilities to the Australian people, the Government seeks to protect the Australian community from unacceptable risks of harm as a result of criminal activity or other serious conduct by non-citizens.
(3) The Government is especially mindful to protect the safety of the community’s more vulnerable members, including minors, the elderly and the disabled.
The following matters are stated in the Direction by way of “General Guidance”:
5.2 General Guidance
…
(2) In reaching a decision on whether to refuse or cancel a visa, a decision-maker needs to consider:
(a)the nature of any harm that the person concerned may cause to the Australian community; and
(b) the risk of that harm occurring.
(3) Exercise of the section 501 power must also be considered in the context of a wide range of factors, including whether the person began living in Australia as a minor, the length of time the person has been ordinarily resident in Australia and any relevant international law obligations.
(4) In some circumstances it may be appropriate for the Australian community to accept more risk where the person concerned has, in effect, become part of the Australian community owing to their having spent their formative years, or a major portion of their life, in Australia.
Paragraph 10 of the Direction sets out the primary considerations as follows:
(1) …
(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).
It is common ground that non-refoulement obligations would not arise in this matter.
Paragraph 11 of the Direction sets out the other matters which, if relevant, must be considered. These are not primary considerations and, generally, should be given less weight than that given to primary considerations.[15] Of potential relevance in this matter would be:
·family ties, the nature and extent of any relationships (para 11(3)(a));
·any links to the country to which Mr Chadwick would be removed (para 11(3)(d));
·hardship likely to be experienced by Mr Chadwick or his immediate family members lawfully resident in Australia (para 11(3)(e));
·level of education and efforts made to increase employment capacity and to make, thereby, a positive contribution to the Australian community (para 11(3)f)); and
·whether Mr Chadwick has been formally advised in the past by an officer of the respondent about conduct that brought him within the deportation provisions or the character provisions of the Act (para 11(3)g)).
Determination
[15] See paras 11(1) and (2) of the Direction.
Primary consideration (a): Protection of the Australian community
Under para 10.1 of the Direction, due consideration is to be given to the objectives set out in para 5(1) of the Direction[16] and to the factors relevant to assessing the level of risk of harm to the community by the person’s continued stay. These include “(a) the seriousness and nature of the relevant conduct; and (b) the risk that the conduct may be repeated”. Examples of offences and conduct that are considered serious are listed in that provision, including, in paragraph 10.1.1(2)(b), “all offences perpetrated against a child (particularly sexually-based offences)”. Paragraphs 10.1.1(3) and 10.1.1(4) relevantly provide:
[16] See para 25 (above).
(3) The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community. Due regard must be given to the extent of the person’s criminal record, including:
(i) the number and nature of offences;
(ii) the period between offences; and
(iii) the time elapsed since the most recent offence.
(4) The following factors are also to be considered:
(a) any relevant information, including, but not limited to, evidence from independent and authoritative sources in respect of the person such as judicial comments in an individual’s case, professional psychological reports, pre-sentence reports for the courts, parole assessments, victim impact statements and similar sources of authoritative information or assessment;
(b) any relevant factors the person provides as mitigating factors;
…
In assessing the risk that Mr Chadwick’s conduct may be repeated, para 10.1.2 of the Direction provides:
(1) The person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending.
(2) The following factors are to be considered as particularly relevant to this assessment:
(a) a recent history of convictions, which should be considered as indicating an increased risk of re-offending;
(b) evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation. Greater weight should generally be given to evidence from independent and authoritative sources, such as judicial comments, professional psychological reports, pre-sentence reports for the courts, parole assessments, and similar sources of authoritative information or assessment; and
(c) evidence that the person has breached judicial orders, including parole, bail, bonds, suspended sentences and any other relevant undertakings or conditions imposed by the courts.
The offences committed by Mr Chadwick fall within para 10.1.1(2)(b) of the Direction. I have noted the comments in the psychological reports concerning Mr Chadwick but of greater significance in this matter are the comments of the sentencing judge. I also note that the offences occurred over a period of two years and involved several children. The damaging effects on those children and their parents were noted by Judge Wall QC from his reading of the victim impact statements. I am satisfied that Mr Chadwick was aware of the wrongfulness of his conduct and note that it was carried out without the knowledge of other adults and in circumstances where he knew that his wife would have considered his behaviour to be inappropriate. The chance of Mr Chadwick re-offending may be limited by lack of future opportunity to engage with children.
I would be satisfied, having regard to the matters listed in para 10.1.1 and 10.1.2 of the Direction, that Mr Chadwick's conduct was of a serious nature and that an assessment of this primary consideration weighs heavily against the exercise of discretion in his favour.
Primary consideration (b): Whether Mr Chadwick was a minor when he began living in Australia
Mr Chadwick was 31 years of age when he arrived in Australia.
Primary consideration (c): The length of time that Mr Chadwick has been ordinarily resident in Australia prior to engaging in criminal activity
Para 10.3(1) of the Direction reads:
Reflecting the fact that the longer a period of residence in Australia the greater the likelihood of significant ties to the Australian community, more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character.
Note: For example, a period of more than 10 years of residence in Australia prior to a person engaging in criminal activity or activity which bears negatively on the person’s character would be an important consideration.
This consideration would not weigh in Mr Chadwick's favour because he was resident in Australia for only four years before he commenced the conduct which resulted in his convictions.
Primary consideration (d): Relevant International obligations
Para 10(1)(d) of the Direction refers to relevant international obligations and para 10.4 of the Direction provides that, “if there is a child in Australia who is potentially affected by a … visa cancellation decision, decision-makers must have regard to the best interests of the child”. There are no such children in this matter as Mr Chadwick’s children are no longer resident in Australia.
Other considerations
I have identified the other relevant considerations in para 11(3) of the Direction which would be taken into account in Mr Chadwick’s situation.[17]
[17] See paragraph 29 above.
Cancellation of Mr Chadwick’s visa will involve some disruption to his extended family in Australia. There is no evidence that this would involve hardship to them. Further, he does have relatives in New Zealand and, significantly, these include his children and his wife with whom he expressed prospects of reconciliation. There would appear to be no obstacle to communication with his relatives in Australia by telephone, other electronic means or by their travel to New Zealand from time to time. Mr Chadwick has not lived in New Zealand for nearly 10 years but his evidence was that he had longstanding living and employment arrangements there prior to his move to Australia. It was acknowledged by Mr Eteuati that Mr Chadwick was not formally advised by the respondent about conduct that brought him within the deportation provisions or the character provisions of the Act. This is not surprising as his involvement with the respondent post-dated his offending conduct.
The primary considerations would weigh heavily in favour of cancellation of the visa and these would clearly outweigh all other relevant considerations in this case which, at best, are neutral to the extent that they would impact on the issue of Mr Chadwick’s deportation. I would be satisfied that, if the Tribunal had had jurisdiction to hear the application, the cancellation of the visa in this case would accord with the standards, values and expectations of the Australian community.
DECISION
The application lodged by Mr Chadwick on 12 June 2012 for review of the decision dated 16 May 2012 is dismissed for want of jurisdiction.
I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member. ............[Sgd]..............................................
Associate
Dated 13 August 2012
Date of hearing 3 August 2012 Applicant In person Solicitor for the Respondent Mr Tigiilagi Eteuati (Clayton Utz)
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