Johnathon Lawson and Minister for Immigration and Citizenship

[2013] AATA 337

[2013] AATA 337

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/0958
Re	Johnathon Lawson
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	Deputy President S D Hotop
Date	24 May 2013
Place	Perth

The decision under review is affirmed.

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

S D Hotop, Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – visa – cancellation of visa – applicant a New Zealand citizen – applicant arrived in Australia in 1993 aged 7 years – applicant convicted of offences from 2004 to 2009 – applicant sentenced to 4 years' imprisonment for armed robbery offences in 2009 – applicant does not pass character test – discretion to cancel visa – primary consideration of protection of Australian community outweighs other relevant primary consideration of applicant’s ties to Australia and other relevant  considerations – significant risk of future serious harm to Australian community by applicant unacceptable – preferable decision is that visa be cancelled – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 501(2)

Direction no 55 – Visa refusal and cancellation under s 501

REASONS FOR DECISION

Deputy President S D Hotop

24 May 2013

Introduction

1. Johnathon Lawson (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the respondent’), dated 4 March 2011, 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”).

2. The applicant was formally notified of the delegate’s decision, in accordance with s 501G(1) of the Act, by an officer of the Department of Immigration and Citizenship (“Department”) by letter, dated 20 February 2013, sent by registered post. Pursuant to reg 2.55(7) of the Migration Regulations 1994, the applicant is taken to have received that notice on 1 March 2013.

   The Factual Background

3. The applicant was born in June 1986 in New Zealand and is a citizen of New Zealand.

4. The applicant first arrived in Australia on 3 September 1993, aged 7 years, and, with the exception of the period from 26 April 1998 to 24 June 1998 when he was outside Australia, he has resided in Australia since 3 September 1993.

5. On 8 April 2009 the applicant, following his conviction (on his plea of guilty) of two offences of armed robbery in company, was sentenced by McKechnie J in the Supreme Court of Western Australia to 4 years’ imprisonment for each offence, to be served concurrently.  McKechnie J ordered that he be eligible for parole.

6. On 4 March 2011 a delegate of the respondent cancelled the visa under s 501(2) of the Act.

   The Relevant Legislation

7. Section 501(2) of the Act provides:

   “ 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 para (a) of s 501(6), namely, “the person has a substantial criminal record (as defined by subsection (7))”. Section 501(7) specifies five alternative circumstances in which, for the purposes of the “character test”, a person has a “substantial criminal record”. In the present case, a relevant circumstance is that specified in para (c) of s 501(7), namely, “the person has been sentenced to a term of imprisonment of 12 months or more”.

   The Ministerial Direction

8. In reviewing the delegate’s decision in this matter pursuant to s 500 of the Act, the Tribunal is required, by s 499(2A) of the Act, to comply with a direction given by the respondent under s 499(1) of the Act. The relevant direction, as presently in force, namely, Direction no 55 – Visa refusal and cancellation under s 501 (“the Direction”), was given by the respondent on 28 July 2012 and commenced on 1 September 2012.

9. Section 1 of the Direction includes (in para 6) a Preamble which contains (inter alia) “general guidance” for decision-makers acting under s 501 of the Act in the following terms:

   “ 6.2     General Guidance

   (1)   The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.  The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

   …

   (3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizens [sic] visa under section 501. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B of this Direction.”

   The principles referred to in para 6.2 are set out in para 6.3 as follows:

   “ 6.3     Principles

   (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.  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.

   (2)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

   (3)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable.  In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

   (4)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 only 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.

   (5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

   (6)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or 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, or their visa application refused.”

10. Section 2 of the Direction, which is headed “Exercising the Discretion”, commences as follows:

    “ 7       How to exercise the discretion

    (1)   Informed by the principles in paragraph 6.3 above, a decision-maker:

    (a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; and

    (b)is required to determine whether the risk of future harm by a non-citizen is unacceptable.  This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.

    8Taking the relevant considerations into account

    (1)  Decision-makers must take into account the primary and other considerations relevant to the individual case, noting that there are differing considerations for visa holders and visa applicants as articulated in Parts A and B.  Separating the considerations for visa holders and visa applicants recognises that persons holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

    (2)  In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (3)  Both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa.

    (4)  Primary considerations should generally be given greater weight than the other considerations.

    (5)  One or more primary considerations may outweigh other primary considerations.”

    Part A (comprising paras 9 and 10) then refers to the “primary considerations” and “other considerations” which, where relevant, must be taken into account by a decision-maker in deciding whether to cancel a visa under s 501(2) of the Act. Those considerations will be relevantly referred to in detail later in these reasons.

    The Evidence

11. The evidence before the Tribunal comprised:

    ·the “G Documents” (G1–G29, pp 1–159) lodged by the respondent on 21 March 2013 (Exhibit R1);

    ·Supplementary G Documents (G30–G38, pp 160–199) lodged by the respondent on 29 April 2013 (Exhibit R2);

    ·the applicant’s witness statement (including annexures “JDL1” and “JDL2”), dated 13 May 2013 (Exhibit A1);

    ·witness statement of Josephine Bernadette Lawson (including annexures “JBL1” and “JBL2”), dated 13 May 2013 (Exhibit A2);

    ·witness statement of Kirstie Scott, dated 13 May 2013 (Exhibit A3);

    ·witness statement of James Simon Harries, dated 13 May 2013 (Exhibit A4);

    ·statutory declaration of Stephen Leslie Wright, dated 13 May 2013 (Exhibit A5);

    ·bundle of letters including:

    –    letter from the applicant, dated 6 May 2013;

    –    letter from Josephine Lawson, dated 6 May 2013;

    –    letter from Jamal Lawson, dated 4 May 2013;

    –    letter from David Lawson, dated 7 May 2013;

    –    letter from Stephen Wright, dated 6 May 2013;

    –    letter from James Harries (undated);

    –    letter from Kirstie Scott, dated 3 May 2013; and

    –    a letter of support from each of Paul O’Neill, Devon Listing, Ruby Collins, Giuliana Hills, Uaina Esekia, Kristin Head, and Paula Galloway.  (Exhibit A6)

    The Applicant’s Criminal Record

12. The applicant’s recorded criminal history in Australia is as follows:

Court	Offence	Court Date	Result
Midland Children’s Court	Damage	28/1/2004	Referred to JJT Midland
Midland Children’s Court	Stealing	28/1/2004	Referred to JJT Midland
Perth Magistrates Court	Possess Weapon	16/6/2005	Fine: $200
Perth Magistrates Court	Disorderly Behaviour in Public	16/6/2005	Fine: $150
Midland Magistrates Court	Dangerous Driving Causing Bodily Harm	17/8/2005	Fine: $1000 Prescribed – Disq Hold/Obt MDL 12 mths
Midland Magistrates Court	Fail to Report Traffic Accident Causing Bodily Harm	17/8/2005	Fine: $150 Disq Hold/Obt MDL 3 mths Mand conc
Midland Magistrates Court	No Motor Drivers Licence	17/8/2005	Fine: $150 Disq Hold/Obt MDL 3 mths conc
Perth Magistrates Court	Offensive Behaviour	7/9/2005	Fine: $500 (Global)
Perth Magistrates Court	Assault Public Officer	7/9/2005	Fine: $500 (Global)
Perth Magistrates Court	Possess Weapon W/Intent to Cause Fear	31//1/2006	Fine: $400
Midland Magistrates Court	Excess 0.05% >0.06% but < 0.07%	17/8/2007	Fine: $200 Disq Hold/Obt MDL 3 mths Mand
Midland Magistrates Court	Causing excessive noise created under new hoon law legislation	17/8/2007	Fine: $800 (Hoon Law) Disq hold/Obt MDL 8 mths
Court	Offence	Court Date	Result
Midland Magistrates Court	No Motor Drivers Licence – Under Fines Suspension	17/8/2007	Fine: $300 Dis Hold/Obt MDL 3 mths
Midland Magistrates Court	Exceed Speed Limit by 10–19 kilometres per hour	17/8/2007	Fine: $150
Midland Magistrates Court	No Motor Drivers Licence	17/8/2007	Fine: $250 Disq Hold/Obt MDL 3 mths
Midland Magistrates Court	Threats to Injure, Endanger or Harm Any Person	17/8/2007	Community Work: 100 hrs Comm Based Order: 12 mths (Supvsn)
Midland Magistrates Court	Stealing	17/8/2007	Community Work: 100 hrs Comm Based Order: 12 mths (Supvsn)
Midland Magistrates Court	Possess Prohibited Drug	17/8/2007	Community Work: 100 hrs Comm Based Order: 12 mths (Supvsn)
Midland Magistrates Court	Criminal Damage	17/8/2007	Community Work: 100 hrs Comm Based Order: 12 mths (Supvsn)
Perth Magistrates Court	Unlicensed Vehicle	20/9/2007	Fine: $500 (Global)
Perth Magistrates Court	No Motor Drivers Licence – Under Fines Suspension	20/9/2007	Fine: $500 (Global) Disq Hold/Obt MDL 3 mths Mand
Perth Magistrates Court	No Drivers Licence (Fines Suspension)	25/9/2007	Fine: $400 MDL Disqualified 3 mths; Mand – Concurrent
Supreme Court of Western Australia	Aggravated Armed Robbery	8/2/2008	Imprisonment: 2 yrs
Supreme Court of Western Australia	Breach of CBO (Order of 17.8.07)	08/2/2008	Total: 2 yrs Imp from 1.12.07 1.  6 mths Imp conc 2.  $400 3.  $200 4.  $100
Court	Offence	Court Date	Result
Supreme Court of Western Australia	Armed Robbery in Company	15/1/2009	Imprisonment: 4 yrs
Supreme Court of Western Australia	Armed Robbery in Company	15/1/2009	Imprisonment: 4 yrs – concurrent Total: 4 yrs Imp from 8.4.09
Perth Magistrates Court	Dangerous Driving Causing Grievous Bodily Harm	30/7/2009	Imprisonment: 9 mths – Concurrent
Perth Magistrates Court	Dangerous Driving Causing Bodily Harm	30/7/2009	Imprisonment: 9 mths – Concurrent
Perth Magistrates Court	Driver fail to ensure assistance (bodily harm)	30/7/2009	Imprisonment: 6 mths – Concurrent MDL Disqualified 3 mths; Mand - Concurrent
Perth Magistrates Court	Fail to report incident (bodily harm);	30/7/2009	Imprisonment: 2 mths – Concurrent MDL Disqualified 3 mths; Mand – Concurrent
Perth Magistrates Court	No authority to drive	30/7/2009	Fine: $300; never held MDL Disqualified 3mths; Mand – Concurrent
Perth Magistrates Court	Fail to stop when called upon	30/7/2009	Fine: $200 MDL Disqualified 3mths; Mand – Concurrent

The Sentencing Remarks of Hasluck J

1. When sentencing the applicant on 8 February 2008 for (inter alia) the offence of aggravated armed robbery, Hasluck J made the following remarks:

   “ …

   Jonathon [sic] Dean Lawson, you are charged that on 1 December 2007 at Bedford, you stole from … with threats of violence one mobile phone, a wallet and a sum of money, the property of …, and that you were armed with an offensive weapon; namely, a knife.  A conviction has been recorded against you today, Friday 8 February 2008, as a consequence of your guilty plea at a hearing before me.

   …

   As to the principal offence, I find the material facts of the matter to be the facts presented by prosecution counsel.  In essence, at approximately 2 am on Saturday, 1 December 2007 the complainant was walking home along Beaufort Street, Bedford when you travelled past in a motor vehicle and decided to rob him for cash.  You stopped and parked in front of the complainant.  You alighted from the vehicle armed with a knife and approached the complainant.

   I find that you demanded the complainant’s mobile phone and said, ‘Don’t fuck with me or I’ll stab you.’  The complainant handed over his BlackBerry mobile phone.  You then said, ‘Give me your wallet.  Give me everything.’  The complainant pulled some cash from his pockets and threw it towards you.  You then said, ‘Don’t fuck around.  Give me your wallet.’  The complainant handed over his black wallet containing sundry cards and cash valued in total at $300.  You then departed in your vehicle.

   Later that day the police executed a search warrant at your address and located the complainant’s wallet, $25 cash and cards in your pants pocket.  Another credit card belonging to the complainant was located in your room and the BlackBerry mobile was located under a pillow in the lounge room.

   You made admissions to the offence stating that you were just off your head and wanted cash.  You said that you had spent approximately $200 of the complainant’s stolen cash on drugs.  I note that there is a request for restitution of the BlackBerry phone, the wallet, cards and $25 cash.

   I have before me various materials which permit me to take account of matters personal to you.  I have an antecedent report dated 1 December 2007 …, a copy of a deposition by the complainant … dated 25 January 2008.  I have also a copy of the pre-sentence report dated 15 January 2008 …  I have also an undated handwritten letter signed by you in which you express regret for the offence.

   I understand that you were born [in] June 1986 and you are therefore presently 21 years of age.  You were born in New Zealand, being the eldest of two sons.  You were raised by your mother as a single woman who eventually left New Zealand to start a new life in Perth.  The materials before me indicate that you have a good relationship with your mother but your relationship with your brother has been volatile at times.

   I understand that you were at school initially at Lockridge Primary School and then completed up to year 10 of high school at Governor Stirling Senior High School.  You have said that you enjoyed school and were a good student who received satisfactory grades in both primary and high school.  Since leaving school you have had numerous jobs and prior to your remand in custody you were employed at [sic] a furniture removalist for nine months and then at Maltese Spas for three months.  There is a prospect that you can return to your place of employment in due course.

   As to your domestic situation, you reported that you have been in a relationship with your partner for four years.  There is one child of this union.  You advise that there are no issues in your relationship with your current partner.  It seems that you have no assets of significance or savings and you currently owe an amount of $9418.43 in fines.

   The report indicates that you began using cannabis at the age of 14 years but have not used cannabis on a regular basis.  You admit to using heroin two years prior to the current offence but indicated that you had not used the drug again until the day of the offence and you said that you abused drugs on the day of the offence but you claim this was due to being given the drugs whilst at a nightclub.

   It appears from your court history that offending commenced as a juvenile in 2004 at the age of 17 years.  Your adult court history commenced at the age of 18 years and you received monetary penalties for possession of weapons, disorderly behaviour in public and failure to report an accident causing bodily harm. You are currently on a 12-month community based order with a supervision component, community service and program. You were sentenced to the CBO for stealing, possessing a prohibited drug, wilfully and unlawfully destroying or damaging property and threats to injure.  I will turn to the details in that regard later.

   You were placed on the CBO on 17 August 2007 by the Midland Magistrates Court.  You generally maintained contact with your supervising officer until November 2007.  You revealed that you were experiencing difficulties within your family relationships but gave few details.  You advise that you were working long hours, which was impacting on your ability to complete your community work hours.  You last reported to supervision on 6 November 2007 and then failed to report on 20 November 2007 and made no further contact with your community corrections officer.  You have completed 12 of 100 hours of community work and last attended your project on 7 October 2007.

   The report reveals in summary that you were cooperative throughout the interview process and accepted responsibility for the offence.  However, the current offence is thought to be an escalation in the seriousness of your offending behaviour.  Given your non-compliance with the CBO and the serious nature of your reoffending while subject to that order, you are not considered suitable for a further supervision order at this time.  It is said that in the event of a term of imprisonment being imposed you may benefit from parole eligibility.

   Your counsel put to me in submissions this morning that you were an occasional user of drugs; you found yourself in a nightclub scene and took advantage of free drugs given to you which were mixed with alcohol.  This led to a feeling of invincibility and risk-taking behaviour.  The facts of the robbery are not disputed and that your actions were, indeed, frightening.  However, it is said on your behalf that you did not intend to harm and you are remorseful.  The property was recovered save for $200 used to acquire further amphetamines.

   Counsel noted that an application was made for bail at an early stage but this was declined.  Counsel submitted that you are the father of one child; you supported your partner and child while working.  Since being in custody your partner has lost the accommodation and has returned to her family circle, it seems.  Counsel indicated that you are presently estranged from your own family.  However, counsel affirm [sic] that you have prospects of returning to your place of employment, being a matter noted in the pre-sentence report.  It was said also that there is an issue with immigration authorities which could lead to action for you to be returned to your country of origin, New Zealand.

   …

   I noted in earlier discussion that the present offence both in its circumstances and in regard to your history represents an escalation in the seriousness of your offending.  It seems from what is before me that you acted impulsively, nonetheless your threatening conduct was undoubtedly extreme and terrifying to the complainant.  You acted in complete disregard of the rights of another person to move about freely in the streets.  Previous rulings of the court and the circumstances of this matter suggest that a term of immediate imprisonment must be imposed to satisfy the need for general and personal deterrence.

   When I turn to the mitigating factors I must take account of your plea of guilty.  This plea came pursuant to the fast-track system and I am therefore minded to allow a discount of 33 per cent in respect of the early guilty plea.  I must also give weight to the fact that you have been in employment and as the submissions of defence counsel and your own letter indicates you regret your actions.  I must keep in mind also that you have been in custody in relation to this offence for a period although allowance for that factor can be made by backdating any sentence that might be imposed.

   When I draw all these factors together I consider that a term of imprisonment of three years would have been imposed under the old provisions.  It follows from what I have said about the new sentencing provisions that a need for an adjustment downwards by one-third that at [sic] that it would be open to me to sentence you to a term of imprisonment of two years.

   In the end, having regard to the escalation I mentioned earlier concerning your behaviour, I am of the view that I must sentence you to a term of imprisonment of two years for the offence of armed robbery …

   …”  (Exhibit R1, G14, pp 84–89)

   Hasluck J ordered that the applicant be eligible for parole after serving 12 months.  [The Tribunal notes that the references in Hasluck J’s remarks to the applicant’s being the father of a child are incorrect; it subsequently came to light that the child’s father is a person other than the applicant (see Exhibit R1, G26).]

   The Circumstances of the Offences for which the Applicant was Sentenced by McKechnie J on 8 April 2009

1. The circumstances of the two offences of armed robbery in company for which the applicant was sentenced by McKechnie J on 8 April 2009 are set out in a Department of Corrective Services Immigration Report, dated 29 March 2010, as follows:

   “ On 15/01/2009, Mr Lawson and his brother were walking in Nollamara.  They observed the victim parking his car on the verge of his property.  Mr Lawson and his brother approached the car with the co-offender moving to the driver's side and approaching the victim.  They asked the victim about cigarettes before the co-offender held a large barbecue fork to the victim’s ribs and demanded the keys.  They took the victim’s wallet, keys and mobile phone from him before entering the vehicle and driving away.  The wallet contained cash, the victim’s driver’s licence, and credit/debit cards.  The car contained cash and a Western Digital Portable Hard Disk Driver.  None of these items have been recovered.

   At about 2.15 am, Mr Lawson and the co-offender, whilst still travelling in the Subaru have [sic] observed another vehicle in the vicinity of Stirling.  Recognising it as a high value vehicle and intending to ‘car-jack’ it, they followed it to an address in Stirling where the victim was dropping off a friend.  Once the Land Rover has [sic] stopped in the driveway, Mr Lawson and his co-offender got out of the Subaru and approached the Land Rover.  Mr Lawson opened the driver’s door and demanded the victim get out of the car while menacing him with a machete.  At the same time, the co-offender approached the passenger and demanded he get out of the car.

   Mr Lawson got into the driver’s seat of the Land Rover while the co-offender returned to the Subaru.  Both vehicles were then driven away.  The vehicle contained a waist bag with a number of credit cards and a Nokia Mobile phone.  None of these items have been recovered.

   A short time later Police attempted to stop both vehicles on the West Coast Highway, Trigg.  Both vehicles refused to stop and Mr Lawson, driving the Land Rover, collided with two police vehicles.  Both offenders/vehicles avoided apprehension.  The stolen Subaru was found abandoned a short time later and the stolen Land Rover was found parked in a car park in Nollamara.”  (Exhibit R1, G15, pp 96–97)

   The Sentencing Remarks of McKechnie J

2. When sentencing the applicant on 8 April 2009 for the two offences of armed robbery in company referred to in paragraph 5 above, McKechnie J made the following remarks:

   “ Johnathon Dean Lawson, you can remain seated for a moment.  In 2008 you were sentenced to two years imprisonment for armed robbery.  You were released at the end of November last year and by mid-January this year, 2009, you had relapsed into drug use with your brother.  On the evening of 15 January, you both decided it would be a good idea to rob people for [sic] their motor vehicles and sell the vehicles for money.  No-one has suggested this was an intelligent idea.

   Accordingly, you committed two serious armed robberies with your brother within a few hours of each other.  You also stole various items of property.  When the police attempted to stop both vehicles, you refused to stop and the landrover you were driving collided with the two vehicles, the police vehicles.  You were arrested next day after you ran away and you were basically uncooperative with the police but against that you have pleaded guilty at an early opportunity.

   You are only 22 and yet you have already developed a significant record.  On the previous occasion this court treated you with the appropriateness for a person of your age, having regard to the serious offence.  You were also dealt with for various breaches of community based orders.  In short, you have been given many opportunities and you haven’t used them.  While youth is still a mitigating factor, it is lessened by the fact that you committed this offence within a very short time of being on parole and that is an aggravating circumstance and these offences themselves are very serious offences.

   Carjacking, as it’s commonly known, is not a prominent crime in Western Australia and will attract deterrent sentences.  Moreover you yourself require deterrence from your behaviour.  You are still young.  You may yet turn yourself around.  I am pleased to hear that you are undertaking the drug program and that you are finding it relevant because unless you solve that problem, you will rapidly find that you will spend most of your life in custody.

   Chiefly because of your youth I will grant you another term of parole but, as I said to Mr Rebbeck, I am likely to be the last judge that will ever do that.  I regard the offences as effectively one transaction, so I will make the sentences concurrent.  You are not presently charged with offences against the police as a result of the driving and so I specifically leave out of account in fixing sentence anything to do with that.

   You owe the Parole Board 241 days for breach of parole.  The state urges me to make this sentence cumulative on that.  Mr Rebbeck urges me to make it concurrent.  I propose in your case to make it concurrent to some extent simply because I can see that if you ever do start to turn your life around, you may be weighed down forever by accumulating days on parole but I will deal with it to some extent by not backdating the sentence.

   Finally I propose to reduce the sentence by a term of one year because of your cooperation or your promise of cooperation for the state.  You should understand that the law provides that if you go back on your agreement you will come back before me and will be sentenced to the extra year.

   So, Johnathon Lawson, if you stand?  But for your cooperation with the state you would have been sentenced to a term of five years’ imprisonment concurrently, but in view of that cooperation I sentence you to a term of four years’ imprisonment for each offence to be served concurrently.  I make a parole eligibility order.  The sentence will take place – date as from today.  You may stand down.”  (Exhibit R1, G13, pp 81–82)

   The Circumstances of the Offences of Dangerous Driving Causing Grievous Bodily Harm and Dangerous Driving Causing Bodily Harm for which the Applicant was Sentenced on 30 July 2009

3. The circumstances of the two abovementioned offences for which the applicant was sentenced by Magistrate Lawrence on 30 July 2009 are set out in a Department of Corrective Services Parole Review Checklist, dated 27 January 2011, as follows:

   “ At about 2:24 am on Friday the 16^th of January 2009, Mr Lawson had stolen and was driving a Land Rover … in a southerly direction on West Coast Highway, Trigg.  West Coast Highway has two lanes in each direction with a posted speed limit of 70 K/mh.  Mr Lawson was travelling in the lane nearest to the kerb being followed by an unmarked police vehicle … driven by Constable W... (victim 1).  As Mr Lawson neared the  North Beach Trigg car park another unmarked police vehicle … driven by Senior Constable S… with Constable G… (victim 2) as passenger, was travelling in the same direction as Mr Lawson in the lane nearest to the kerb.  Constable G… as [sic] then activated the blue lights and siren.  Mr Lawson slowed down and appeared he was going to stop.  Mr Lawson moved into the right lane, Senior Constable S… moved into the right lane also.  Mr Lawson accelerated as Senior Constable S… did so and collided with the rear of the police vehicle pushing it forward and into the central metal barrier.  As a result of this collision Constable G… received medical treatment for soft tissue injuries to his neck and back.  Mr Lawson became stationary behind the Police vehicle driven by Senior Constable S…  Constable W… positioned the police vehicle he was driving behind the Land Rover with the blue and red lights illuminated.  Constable W… exited the police vehicle and stood by the opened driver’s door.  Mr Lawson reversed at speed shunting Constable W…’s vehicle back approximately 10 metres.  Just prior to contact Constable W… jumped inside the police vehicle to avoid being struck by the vehicles.  Due to the force and the speed of Mr Lawson reversing Constable W… received soft tissue injuries to his neck and a sprained left hand.  Constables W… and G… required medical attention.,  At the time the road was dry, visibility was good and the area is a built up residential area.”  (Exhibit R2, G33, pp 173–174)

   The Sentencing Remarks of Magistrate Lawrence

4. When sentencing the applicant on 30 July 2009 for the two abovementioned offences and other related offences, Magistrate Lawrence made the following remarks:

   “ Well, I’ve had the benefit of reading the transcript of the sentencing remarks of his Honour [McKechnie J] when sentencing you for the very serious offence of robbery [sic], Mr Lawson.  No doubt the circumstances surrounding the commission of these offences must attract a term of imprisonment.  They are at the upper level of seriousness as you’ve deliberately driven your vehicle colliding with police vehicles and attempting to collide with the officer [sic] and they sustained injuries as a result of your behaviour.

   You then fled the scene regardless of their predicament and, on top of that, you have an extensive record and it would seem at the time that you were the subject of – or you were on parole.  Having considered all those issues I’m giving you a discount for the plea of guilty, the only appropriate disposition is one of imprisonment.  You will be sentenced to nine months’ imprisonment in relation to each of the bodily harm matters.  Six months’ imprisonment in relation to the fail to ensure assistance and $200 fine in relation to the failure to report – sorry, failure to stop.  $300 for failing to have a licence and disqualified under section 51.  Two months in relation to the failure to report.

   But having considered the comments made by his Honour, it is obvious that he has taken into consideration the fact that you were cooperating with the authorities and expedite [sic] the hearing obviously for that purpose.  The sentence would otherwise have been five years’ imprisonment on top of your parole time and having regard to the totality principles of sentencing, the sentence should not be crushing upon you particularly in the light of your age albeit, as I have said, you have an extensive record.  I believe that those sentences should be concurrent upon the sentence that has been imposed by his Honour.”  (Exhibit R1, G12, p 78)

   The Applicant’s Evidence

5. The applicant confirmed that he had signed a witness statement, dated 13 May 2013, and that its contents are true and correct.  That statement is as follows:

   “1.    I was born in Christchurch, New Zealand [in] June 1986 to Josephine Lawson and Jonathan Pinamonte.

   2.I have a brother, Jamal Lawson who was born [in] December 1988 and is currently residing at Wondoo Reintegration Facility.

   3.My parents separated when I was two and half years old because my father was abusive towards my mother.

   4.My mother and I have a good relationship.

   5.My father and I have very sporadic contact. When I was younger he was not reliable in terms of seeing me and my brother.

   6.I don’t remember much about New Zealand. I remember living at my grandmother’s house and going to school there for a short time. When I went to New Zealand for two months in 1998 to say goodbye to my grandmother, I didn’t like it there. I felt like there was a lot of gang mentality and it made me feel uncomfortable.

   7.I moved to Australia with my mother and brother in September 1993 when I was seven years old and my brother was four years old. We stayed with my grandfather, David Lawson, when we arrived in Perth, Western Australia.

   8.I started attending Embleton Primary School for a few months until our family got a unit in Lockridge. I then attended Lockridge Primary School from Year 2 to Year 7.

   9.In Year 8 I went to Lockridge High School. In Year 9, at age 15, I started hanging around with kids who would disrespect teachers and were a bad influence on me.

   10.To be cool and accepted at Lockridge High School, you had to use drugs.

   11.I started getting into crime and got caught by the police with a car stereo. That was the first time I was in trouble with the law.

   12.Half way through Year 9, I moved to Governor Stirling High School. The school was better, but everyone from Lockridge High School was still living in my neighbourhood and I kept hanging around with the same people.

   13.Half-way through year 10, I left school and ended up getting a job as a brickie’s labourer with the help of someone at Potter’s House Church.

   14.I also worked as a cabinet maker and a metalworker. From the age of about 17, I worked as a removalist.

   15.In about 2004, I met [M], who became a serious girlfriend.

   16.[M] became pregnant in 2005 and had an abortion. This upset me and triggered a lot of drug use, because I wanted to keep the baby.

   17.We were together until around 2007, when I went to jail for armed robbery. I didn’t want to continue having a girlfriend while I was in jail.

   18.In late 2008, while my mother was in New Zealand and Jay Chapman was staying in our house in Eden Hill, the home was invaded by two men. They smashed up the place and bashed Jay and my brother’s girlfriend Lauren. I suspect this was an act of revenge because of a feud that had been going on between my brother Jamal and people from the neighbourhood and from school.

   19.When I got out on parole in November 2008, it was a bad time for me. I came back to a smashed house and cleaned it up a bit. I felt devastated that our belongings were destroyed. I went to see Jay at my grandfather’s house and he was badly hurt and it seemed like his spirit had been broken.

   20.When I returned to my mother’s house my room was empty. The landlord of the place I we [sic] living before I went to jail had thrown out my furniture and belongings. My former housemate had taken all my expensive belongings.  I was sad and angry and started smoking marijuana again.

   21.Through a friend I almost immediately got a job cleaning office buildings, which lasted around three weeks, until people started driving past my mother’s house and throwing bottles. It was like a warzone. I remember one day six cars drove up to the house and I was scared for my life. My brother and I then moved to a friend’s house in Nollamara for a few weeks.

   22.We were struggling for money. One day in January 2009, my brother and I had been drinking when he suggested we rob an ATM. I had not slept for four days because of drugs and told him just to chill and wait until mum gets back. My brother didn’t listen and walked out the door, saying he would do it himself. I felt responsible for him and did not want to let him go by himself.

   23.We ended up car-jacking a Subaru Liberty, driving to my mother’s house and picking up a few valuables to salvage (in case the house was invaded again) and car-jacked a Range Rover. I had a machete at the time. We were going to drive both cars to Fremantle but were soon being chased by police around Scarborough. My brother drove off in the Subaru and I tried to evade the police in the Range Rover. I knew I was on parole and had to escape. I didn’t want to go back to jail.

   24.I collided with the police car that had pulled out in front of me to block my way. I then saw a police car behind me, so I put the Range Rover in reverse, collided with the rear police car and pushed it down the road. I saw that one of the windows of the Range Rover had been shot out. I then did a U-turn and drove away. It was a very stupid thing to do and could have cost me my life and harmed the police officers. I don’t remember exactly why all this happened. I hadn’t slept in four days and was tipsy. If I hadn’t been on parole I think I would have stopped. Annexed hereto and marked ‘JDL1’ is a printout of a news report which I believe relates to this incident.

   25.The last time I tested positive for drugs was in November 2011, because I had smoked marijuana. I was in Bunbury prison and had been doing very well working in the metal workshop. In October 2011, there was a dispute between two rival gangs. I was not a part of any gang in prison and tried to mediate. As a result of the dispute, a prisoner got assaulted with a metal pole. The guards thought I was involved because the pole was made out of metal and I worked in the metal workshop. They did not ask any questions, dismissed me from my work and took away my single cell. I was on level 1 pay grade, which is very difficult to get to. I lost that status too. I was very upset about losing everything I had work [sic] so hard to achieve that I used marijuana once.

   26.Work is so important and I was very upset that they took this away from me. I was not violent as a result of my drug use. I just covered up my cell windows and sat and spent time by myself.

   27.I have not used drugs since that time.

   28.I have spent a total of five years four months in prison. During my time in Hakea, Acacia, Bunbury and Albany prisons, I attended a number of courses. Annexed hereto and marked ‘JDL2’ are copies of certificates from the courses I have attended. I also attended the ‘Green Lighthouse program’ in Acacia which was a support group run by a prisoner to help us talk through our issues.

   29.I really wanted to do more courses when I was transferred to Albany, but they said there was nothing available. They even cancelled the Violent Offenders’ Course which I was keen to do.

   30.In Albany prison, I got chosen to be a ‘Trustee’ in the beginning of 2013, because of my good attitude and willingness to work. As a Trustee, I was allowed to be the cleaner in the solitary confinement ward, work which other prisoners are not allowed to do.

   31.I do not want to associate with anyone from prison or any of my ‘old crew’. I want to make a fresh start, finish my apprenticeship that I started in prison and work in the mines. I also want get my driver’s licence.

   32.I have no support network in New Zealand. I don’t know anyone except for my uncle Dean and his wife and I don’t want to contact them because he has a history of criminal conduct. The support that I need is in Western Australia.

   33.I know I can count on my mother, her partner Stephen, people from the Potter’s House Church like James Harries and friends like Kirstie Scott to help me get my life back on track.

   34.I really need to keep busy in life to stay out of trouble. I think I have benefited from my time in prison because I have been able to do courses which I would not have had the chance to do otherwise. I got the help I needed in prison. In the Perth Immigration detention centre, I have started the Narcotics Anonymous program to continue my rehabilitation and intend to continue if I am released. 

   35.I am drug-free and have no intention to use drugs again, because I know the negative effect they have on me. I am determined to start a new life.”  (Exhibit A1)

6. In his oral evidence the applicant said that, up until 2005, when his then girlfriend had an abortion without his knowledge, he had been “doing pretty well, working and staying out of trouble”, but that, when he became aware of the abortion, he was “pretty upset and angry and started using drugs flat out again”. He said that he then got into crime when “the drugs were out of control”.

7. He said that his first time in prison in 2007 was “not too bad”.  He said that he “knew a few people” there and he “adjusted pretty quick”, adding that it was “not as bad as [he] thought it would be”.

8. He said that he found the “Pathways” program (which he completed at Bunbury prison from October to December 2011) “pretty confronting, opening up doors about [his] life and drug use”.  He said that his “bookwork” in the program was “good” but he acknowledged (as indicated in the Program Completion Report – see paragraph 45 below) that his groupwork was not so good, explaining that he is “sort of a shy person” and does not work well in groups.  He added that, “when they make [him] do things, [he] fold(s) [his] arms and shut(s) down”.  He further added that he “liked” one of the program facilitators but was “not too keen” on the other one because he thought that he was “judging” him.

1. He said that he “feel[s] close to Australia” and does “not remember much about New Zealand”.  He said that he visited New Zealand in 1998 and “had a bad feeling” about New Zealand because of the “gang activity” there.

2. He said that he is presently attending the Narcotics Anonymous program at the Immigration Detention Centre and intends to continue to attend that program if he is released.

3. Finally, the applicant said that prison has been “an eye-opener” for him and that it has been “for the best” because it “snapped [him] out of what [he] was doing”.  He added that, in prison, he has “got the help [he] needed” and has also done many educational courses.  He said that he feels that he has changed and that he deserves a second chance.

   The Evidence of the Other Witnesses

   Josephine Lawson

4. Ms Lawson, the applicant’s mother, confirmed that she had signed a witness statement, dated 13 May 2013, for the purpose of these proceedings and that its contents are true and correct.  Ms Lawson’s statement is as follows:

   “1.    My name is Josephine Bernadette Lawson. I was born in Christchurch, New Zealand [in] December 1968 to David Lawson and Puni Lawson (now deceased).

   2.I am currently employed as a patient carer at Home Care Options and have been working for them since 2009.

   3.I have three siblings:

   a.    Dean Lawson, who is approximately 41 years old and lives in New Zealand.

   b.    David Lawson, who is approximately 49 years old and lives in Australia, but I do not know where.

   c.    William Lawson, who is approximately 47 years old and lives in in Perth, Western Australia. I do not have contact with William.

   4.In 1980, my parents divorced. I stayed with my mother while my father moved to Melbourne, Australia with my brother David, and then later to Perth, Western Australia.

   5.I attended primary school and high school in Christchurch, New Zealand up until Grade 10.

   6.After Grade 10, at the age of 16, I worked at a Fast Food outlet. In around 1984, I met Jonathan Pinamonte at the outlet and began a relationship with him. He moved to my mother’s house after around six months. My brothers Dean and William were still living there.

   7.[In] June 1986, when I was 17, Jonathan Dean Lawson (‘JD’) was born.  Around six months later, Jonathan Pinamonte and I rented a small flat in Christchurch and moved there.

   8.In … December 1988, Jamal Richard Lawson was born.

   9.In around 1987, my brother Dean assaulted my brother William in a home invasion and was imprisoned for 12 months. Just before Dean was released from prison, William fled to Australia because he was scared of Dean.

   10.In early 1989, when JD was around two and a half years old and Jamal was three months old, Jonathan Pinamonte and I split up because he was abusive towards me.  At this time, we were both using marijuana and valium and we were both also dealing drugs from time to time.

   11.JD witnessed a lot of screaming and hitting between Jonathan Pinamonte and me. I finally made the decision to break the relationship because I did not want my sons to be exposed to domestic violence. I moved back to my mother’s house with my sons.

   12.At this time, William was already in Australia and Dean had moved out. Soon after moving back to my mother’s I made a decision to clean up my life.  During my time together with Jonathan Pinamonte, I had met members of a Christian congregation. I decided to start going to Potter’s House Pentecostal Church once a week and become a Christian. I gave up drugs, saw crime for what it was and chose friends a bit more wisely.

   13.JD and Jamal had very little contact with their father in the following years, at most once every three or four months. I was not working at the time.

   14.In around 1991, Dean made contact with my father tried to move to Australia but was denied entry at Perth airport. He was detained and removed him [sic] back to New Zealand. At this stage, I had also re-established contact with my father.

   15.My brother Dean would frequently bring his children to my mother’s house to look after them and ask for money. He would also frequently bring persons affiliated with the Mongrel Mob, a well-known gang in New Zealand, to my mother’s house. My sons and I would see Dean and his associates taking drugs and talking about crime.

   16.Dean was frequently abusive to his wife, both his children and my sons. Even when they were in nappies, he would hit them whenever he was high and impatient. This continued when I moved back to my mother’s place.  I used to see him hit my mother and often intervened by hitting him back. Dean constantly put pressure on me to continue dealing drugs.

   17.Between 1989 and 1993, Dean served at least two prison sentences.

   18.My mother was keen for me to move away from New Zealand in order to keep my sons away from drugs and crime and my brother Dean. In 1993 she was diagnosed with cervical cancer. She pleaded again with me to take the children to Australia.

   19.I made contact with my father who was happy to have us live with him. He paid for the airfares for me and my sons and allowed us to live with him for four months. We flew to Perth from Christchurch via Melbourne in September 1993.  JD was six [sic] years old and Jamal was four years old. Since this time I have brought up I brought my sons up on my own [sic]. It hasn't been easy, in fact at times very hard financially, physically & emotionally.

   20.…

   21.…

   22.…

   23.In 1994, Homeswest then supplied me with a unit in Lockridge and I had to wait two months before I could get a pension. Potter’s House church members were helping me with food and furniture.  I started getting my life back on track.

   24.My sons were seven and five years old at the time. They began attending Lockridge Primary School.

   25.In around June 1998, JD, Jamal and I went to New Zealand to see my mother and to say goodbye.  We stayed in New Zealand for two months. My mother passed away shortly after we came back to Perth.

   26.My father and William don’t get along and have had on and off contact for years. When my sons got older, we developed strategies about when to leave family barbecues to avoid William getting drunk.

   27.In around 2004, when JD was 17, he decided to move in with William for a month so that I could focus on looking after Jamal. I thought this was a bad idea but that JD was old enough to decide for himself.

   28....

   29.Around 2004 JD rolled a light truck and got a fine. We talked about what had happened.  Most of the time our communication was good. He was honest to me most of the time and rarely hid anything.

   30.My sons have not had contact with William for around six years.

   31.In around 2006, when JD was about eighteen or nineteen, his girlfriend at the time had an abortion without telling him. He was living with me at the time in a house in Eden Hill. I could see that he was devastated. He began using harder drugs like speed and ice.

   32.In late 2008, Dean’s daughter Latoya died of a drug overdose in New Zealand. JD was looking forward to getting out of prison & Latoya moving to Perth with Jay Chapman (her husband) and their two sons Danny & Saia. He was devastated by the news of her death.

   33.In late 2008, Jay Chapman asked me if his children Saia and Danny could come and live with me. After the death of his wife Latoya he could not cope with looking after them.  Jay came to Perth with the children and stayed with me after Latoyas funeral.

   34.In late 2008, while I was in New Zealand and Jay Chapman was staying in my house in Eden Hill, the home was invaded by two men. The men destroyed furniture and hit Jay in the head with a brick so badly that he had to go to hospital. I think they were seeking revenge. My father went back to Perth early when we heard about the invasion.

   35.When JD was released on parole in November 2008, I was still in New Zealand. JD came home immediately only to find a smashed up house for him to clean. I think it was hard for him to see that. Out of fear, he went to stay elsewhere. In the meantime, I was organising a new house through Homeswest. We were put on a priority list.

   36.While I was still away in New Zealand, in January 2009, JD and his brother committed armed robbery – they stole two cars and JD smashed into a police car.

   37.In around October 2009, I went to New Zealand by myself to return Saia and Danny. This is because Dean and his wife had been telling me and Jay that he had cleaned himself up and was no longer doing drugs.

   38.When I got to New Zealand with Saia and Danny, we stayed at Dean’s place. I had planned to go there for three months to see if Dean was truthful in what he had said. The first couple of months were fine but then he started physically abusing Saia and Danny, who were one and two years old at the time.

   39.I decided to go back to Australia with the children, but Dean wouldn’t let me out of the house with them. 

   40.On 6 January 2009, I went to Child, Youth and Family Services, who helped me contact the police. The police removed the children and gave them to me. Annexed hereto and marked ‘JBL1’ is a copy of the Police outcome report for this event.

   41.After this event, Jay Chapman went back to New Zealand. I left Saia and Danny with him and came back to Australia.

   42.In 2012, I took my father back to New Zealand for his birthday. My father stayed with Dean and I stayed with Stephen Wright, my current partner. My father convinced me to go and celebrate his birthday with Dean and Stephen. I agreed and the night went without any problems.

   43.The next morning, Dean had an argument with his wife. Shortly after Stephen arrived back from his job as a dairy farmer, Dean arrived and searched every room of the house looking for his wife. I told him to leave.  He started being verbally abusive to me and talking about the incident with his grandchildren Saia and Danny. He was angry about me calling the police on him and said ‘if your son gets deported from Australia, he’s dead’.

   44.He left after that. He rang me and argued on the phone. He said he was going to come back and sort ‘me out, Steve out and the house out and smash the house up’.  Annexed hereto and marked ‘JBL2’ is a copy of the police incident report.

   45.My relationship with JD has always been close.  Over the years JD has been a real support for me personally. Being my eldest he has at times taken on a lot of responsibility in the home, especially when I have had to work or when I have been unwell. He has never complained about it he just says ‘that's life’. I can’t say there are many young ones today that are that selfless.

   46.JD has a close relationship with his brother Jamal. They have had their ups & downs like all brothers but now they are adults they have become very close. Jamal looks up to JD and growing up JD tried to be a positive role model to his brother.

   47.I have seen both Jamal and JD change a lot since they have been in prison. They value life & family more than they ever have. They kick themselves for robbing themselves of so many years of their lives. JD has expressed a wish to work in the mines with his new skills he learned in prison.

   48.JD gets on well with my father. He has always respected him and they communicate well. Late last year my father was diagnosed with asbestosis & emphysema, which he contracted from working in the mine here in Western Australia. This was devastating to us all. I am sure that JD will do all he can for his grandfather when his health deteriorates if not beforehand.

   49.JD has had very little contact with his father over his life, the only contact was only ever by phone. He has never had a proper positive male family role model.

   50.As a family we have been attending Potter’s House Christian church since arriving in Australia in September 1993. We have close friends in this church who have been and continue to be a real support to us all.

   51.JD has made some very bad choices which have had a negative impact on himself, his family and the community. He made friends with the wrong crowd and entered the drug scene.

   52.JD is not the real JD when he is on drugs and he realises it is not a life he wants to live anymore. He acknowledges the negative impact it has had on family, friends and the wider community. He wants to change for the better. He has learnt the hard way.

   53.Many people in the church I attend come from substance abuse backgrounds and have turned their lives around. It shows that it is possible and that with encouragement and support anyone can do it and become good law abiding community members.”  (Exhibit A2)

5. In her oral evidence Ms Lawson said that the applicant would have no support in New Zealand. She said that, if the applicant were removed from Australia to New Zealand, she would not go back to New Zealand with him.

6. Ms Lawson said that her father is an Australian citizen but that she and the other family members in Australia are not Australian citizens.  She confirmed, however, that she and the other family members are permanent residents.

   Kirstie Scott

7. Ms Scott confirmed that she had signed a witness statement, dated 13 May 2013, for the purpose of these proceedings and that its contents are true and correct.  Ms Scott’s statement is as follows:

   “1.          I am employed by Broome International Airport as a reception/accounts clerk. I have been working there for six months.

   2.I am a personal friend of Johnathon Lawson. I met him in the year 2000 at Lockridge Senior High School.

   3.We were very close between the ages of 13 and 15. We hung out a lot and talked all the time on the phone. He was always kind hearted and was always there with me. He talked me through a lot of personal stuff during this time.  We were very close. 

   4.Despite that the fact that we had different groups in high school we still managed to remain close friends.

   5.I am fully aware of his criminal record, including the major offences of armed robbery and his previous drug use. It was quite normal for students at Lockridge Senior High School to have criminal records and many have been in jail. It was a very tough school environment, where it was cool to be seen as a criminal. It was also a very rough area to live in and very easy to fall into a habit of crime.

   6.We lost contact when I left school in year 11 and went to college. Shortly after this I got a full time job.  

   7.When I was 19 I heard that he been incarcerated and was shocked as I thought it was out of character for him.

   8.In April 2013 we reconnected when he added me on Facebook and told me he was out of Jail. I said I would come and visit him and this is when he told me he was in immigration detention. I think he was ashamed of this fact. 

   9.I have visited Johnathan [sic] regularly, about once a week, and spoken to him about three times a week, since he was transferred to Perth Immigration and [sic] Detention Centre. During my visits we have had conversations about the mistakes Johnathan [sic] has made. He has shown me that he is truly remorseful for his actions.

   10.He has told me that he doesn’t talk to anyone from the old group of friends and I have seen that he is not friends with any of those people on Facebook.

   11.He told me that his plan is to move in with his mother and to get a job.

   12.I believe that Johnathon has matured greatly since being incarcerated.

   13.I see Johnathon as an Australian, I thought he was born in Australia and never knew he was not a citizen. I was shocked to hear he could be deported.

   14.I will definitely offer Johnathon support if he allowed [sic] to stay in Australia. I will keep in contact with and visit him. I believe if he starts to hang around with other people he will change his behaviour and mature even more. I believe he just needs a chance to change. 

   15.I live in East Victoria Park and have moved away from Lockridge. I have offered to introduce him to my friends when he gets out. I will hold a gathering to do this. He was very open to this.   

   16.Australia is Johnathan’s [sic] home and I believe that he will to [sic] learn from his mistakes and make some positive changes if he is allowed to remain here.”  (Exhibit A3)

8. It is unnecessary to refer in detail to Ms Scott’s oral evidence in these reasons.

   James Harries

9. Mr Harries confirmed that he had signed a witness statement, dated 13 May 2013, for the purpose of these proceedings and that its contents are true and correct.  Mr Harries’ statement is as follows:

   “1.    I am a musical instrument salesperson at Zenith Music in Claremont and have been working there for over 20 years.

   2.I have known Johnathon Lawson, along with his brother Jamal Lawson and mother Josie Lawson, for approximately 20 years.

   3.I know the family through the Potters House Christian Fellowship of Australia, which is the church I attend.

   4.I am considered to be a lay leader amongst the congregation and consequently my role is to keep an eye on and care for people in our church.

   5.I was not a close friend of Johnathon but knew him well enough to greet him and have a chat at church.

   6.I lost contact with Johnathon when he was about 15 years old when he stopped attending church.

   7.About 2 years ago Josie came to me at church and told me that no one from the church had visited her boys in prison. I said I would be happy to visit them to offer them some hope and guidance.

   8.The last time I saw Johnathon was about 2 years ago when I was visiting his brother Jamal in Acacia prison. I did not get to visit Johnathon on that day as he had someone else visiting him. I intended to go back to see him but he was transferred to another prison before I could do so.

   9.I have a particular interest in aiding the rehabilitation of released prisoners.

   10.This interest started when a lady friend from church asked me to visit in prison the son of a lady who was attending our church, the young man being a former guitar student of mine. Subsequently I visited other prisoners on the request of another lady friend at church. This lady friend felt it more appropriate for a man to visit male prisoners so I said I would be happy to do so.

   11.Consequently, for a period of around 10 years, prison records will show that I visited various prisoners in Western Australian prisons.

   12.I would like to offer support and guidance to Johnathon upon his release.  I am aware of Johnathon’s criminal history, including his armed robberies, stealing and damage to police vehicles. I also know he has been a heavy drug user in the past.

   13.I can offer him assistance in the form of mentoring, visitation and friendship, employment advocacy, church services and bible studies.

   14.Whatever I can do to help Johnathon I am happy to do. I would like to see him put back on the right path in life.”  (Exhibit A4)

10. In his oral evidence Mr Harries said that he had not been in contact with the applicant recently until the last couple of weeks when he spoke to him on the telephone and he was asked to prepare a witness statement in support of his appeal.

    Additional Evidence

11. The applicant tendered in evidence a statutory declaration of Stephen Leslie Wright, dated 13 May 2013, which states as follows:

    “ 1.      I have known Johnathon Lawson (‘JD’) since he was a newborn.

    2.      I have kept in touch with the Lawson family on & off over the past 27 years.

    3.I believe given the opportunity, JD will turn his life around in a positive way.  He has regretted his foolish behaviour in the past & the negative impact it has caused his family, friends & the community.

    4.I have recently become engaged to JD’s mother Josephine Lawson.  I speak to him regularly and have visited him in prison & at the immigration detention centre.  I have built a good rapport with JD and his brother and believe having a man around like a father figure will bring a positive outcome as they have never had a man in the house.

    5.JD has no ties to anyone in New Zealand & feel [sic] if he was to be sent back the impact on his family will be overwhelming.

    6.I strongly believe that JD deserves another chance.  I have taken out over $10,000 from my superannuation fund to help Johnathon out with his legal fees.”  (Exhibit A5)

    [The Tribunal notes that Mr Wright was not required by the respondent for cross-examination and he did not give oral evidence.]

1. The applicant also tendered in evidence a letter written by him on 6 May 2013 and 13 letters of support as follows:

   ·letter  from Josephine Lawson, dated 6 May 2013;

   ·letter from David Lawson (the applicant’s grandfather), dated 7 May 2013;

   ·letter from Jamal Lawson (the applicant’s brother), dated 4 May 2013;

   ·letter from Stephen Wright, dated 6 May 2013;

   ·letter (undated) from James Harries;

   ·letter from Kirstie Scott, dated 3 May 2013;

   ·letter from Paul O’Neill, dated 4 May 2013;

   ·letter (undated) from Devon Listing;

   ·letter from Ruby Collins, dated 6 May 2013;

   ·letter from Giuliana Hills, dated 24 April 2013;

   ·letter from Uaina Esekia, dated 3 May 2013;

   ·letter (undated) from Kristin Head;

   ·letter from Paula Galloway, dated 30 April 2013.  (Exhibit A6)

2. Further material which is in evidence will be referred to later in these reasons.

   Analysis

   Application of the “character test”

3. By reason of the fact that the applicant was, on 8 April 2009, sentenced to 4 years’ imprisonment, the Tribunal finds that the applicant has a “substantial criminal record”, as defined in s 501(7) of the Act, and that, by reason of s 501(6)(a) of the Act, he does not pass the “character test”.

4. It follows from that finding that the discretionary power to cancel the visa, pursuant to s 501(2) of the Act, is enlivened in this case.

   Should the discretionary power to cancel the visa be exercised in this case?

   The primary considerations

5. Paragraph 9 of the Direction states as follows:

   “ 9   Primary considerations – visa holders

   (1)   In deciding whether to cancel a person’s visa, the following are primary considerations:

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

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

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

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

   Protection of the Australian community from criminal or other serious conduct

6. Paragraph 9.1 of the Direction states as follows:

   “ 9.1     Protection of the Australian community

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

   (2)   Decision-makers should also give consideration to:

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

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

   9.1.1  The nature and seriousness of the conduct

   (1)In considering the nature and seriousness of the person’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

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

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

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

   (d)   The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s 501(6)(b) or (d), or is not of good character under s 501(6)(c), is considered to be serious;

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

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

   (g)The cumulative effect of repeated offending;

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

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

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

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

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

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

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

   (i)information and evidence on the risk of the person re-offending; and

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

7. As regards the nature and seriousness of the applicant’s criminal offending to date, the Tribunal comments on the relevant factors listed in para 9.1.1(1) of the Direction as follows:

   ·the offence of armed robbery, involving the threat of violence, which the applicant committed on 1 December 2007, and the two offences of armed robbery in company and the offences of dangerous driving causing grievous bodily harm and dangerous driving causing bodily harm, which the applicant committed on 15 – 16 January 2009, are viewed very seriously;

   ·the sentence of 2 years’ imprisonment imposed on the applicant for the abovementioned offence of armed robbery, and the sentence of 4 years’ imprisonment imposed for each of the abovementioned offences of armed robbery in company (to be served concurrently), reflect the seriousness with which the sentencing judges regarded those offences;

   ·the applicant’s recorded criminal history (as set out in paragraph 12 above) reflects a pattern of consistent and frequent offending in the period from 2004 to January 2009, with a significant increase in seriousness involving violence or the threat of violence in December 2007 and January 2009 when the abovementioned offences of armed robbery, and armed robbery in company, respectively, were committed;

   ·having regard to the applicant’s extensive criminal history involving repeated offending over a period of some 5 years, culminating in the abovementioned offences of armed robbery, armed robbery in company, dangerous driving causing grievous bodily harm, and dangerous driving causing bodily harm, the cumulative effect of his offending has been to inflict a substantial amount of serious harm on the Australian community;

   ·on 5 May 2008 the applicant received a formal warning from the Department regarding the possible consequences of further offending on his immigration status, and he nevertheless subsequently committed the abovementioned serious offences of armed robbery in company and dangerous driving causing grievous bodily harm and dangerous driving causing bodily harm in January 2009.

8. Having regard to the considerations referred to in paragraph 39 above, the applicant’s criminal offending to date is considered to be very serious.

9. As regards to the risk of the applicant’s re-offending, and his progress towards rehabilitation, the Supplementary G Documents (Exhibit R2) contain various authoritative, independent documents which refer to matters which are relevant to an assessment of that risk and an assessment of his progress towards rehabilitation.  These are set out in paragraphs 42–45 below.

10. A Psychological Report for Court by Mr M Cicchini, Clinical Psychologist, dated 26 March 2009, which was prepared for the purpose of the sentencing of the applicant in the Supreme Court on 8 April 2009 for the two abovementioned offences of armed robbery in company committed by him on 15–16 January 2009, states as follows:

    “…

    This 22 year-old man was interviewed art [sic] Acacia Prison on March 12, 2009.  As part of the assessment process he completed the Personality Research Form (PRF), a personality inventory.  Supplementary information about Mr Lawson’s childhood was provided by his mother, who was interviewed by telephone.

    …

    Antecedents to offence

    The current offences can be perceived as a relapse into reoffence not long after his release to parole.  He was previously incarcerated for an offence of Armed Robbery, having been released on parole in November 2008.  He indicated that whilst in prison his intention had been to rehabilitate himself from a drug use problem, but he had not been successful in entering a programme until 6 weeks before his release to parole.

    He reported that a number of factors had contributed to his returning to the abuse of drugs soon after his release, despite having the opportunity of continuing in the Triple P programme to which he was introduced in prison.  He reported that whilst in prison his home had been ransacked and damaged, and his personal property stolen or burnt.  That had upset and stressed him.  He felt angry: ‘I knew who did it’.  He also felt sad and lonely:  ‘the old room at Mum’s house:  it was empty – nothing there.’  He did not talk about his upset feelings to anyone – ‘I just went to my dealer’s and got stoned’ (on cannabis).  After his release, his mother was temporarily absent in New Zealand, and he had promised her he would look after his younger brother (current co-offender).

    In the first weeks in the community he felt weighed down by his responsibilities and also felt hamstrung and slowed down by circumstances in his goal to gather some funds from working in order to move away from his drug-using associates and develop a more positive life.  A couple of weeks after his release ‘a friend rocked up in the driveway’ (a friend from jail), and together they abused drugs.  He did not recover from that decline, as he immersed himself further in drug and alcohol use: ‘We just got on the drugs, and I didn’t go back to work, and then started to get back together with my old friends’.  He returned to familiar patterns of funding his drug abuse, which included dealing and the delivery of drugs.

    Mr Lawson indicated that he had no desire to offend in the lead-up to the current offences, as he had been awake for several days, and planned to recover by sleeping for a few days after which he would be in receipt of funds from Centrelink to purchase more drugs.  According to Mr Lawson, immediately prior to the offences his brother (who was living with him) had had an upsetting phone call with his girlfriend, and had decided he needed to obtain drugs to overcome his upset.  His brother allegedly suggested committing an ATM robbery, but they then heard the sound of a four-wheel drive returning home, and the idea of car-jacking it arose.   He said he had cooperated with his brother due to feeling that he could not talk him out of offending, due to his brother’s emotionally charged state, and a desire to make sure his brother would not be hurt in the process of offending.  It was further indicated that prior to that, Mr Lawson had been playing video games, and in particular, a version of Grand Theft Auto.  (As a minor side issue to this report, reference is made here that Mr Lawson indicated that he would spend a considerable amount of time playing this and other video games whilst at home, and that his brother did likewise.  That game had also been played by Mr Lawson whilst in prison.  The writer has previously (2003) drawn attention in the Courts to the inappropriateness of such material in light of its apparent efficiency [sic] to enhance antisocial behaviour in predisposed individuals).

    Results of testing

    The personality dispositions suggested by the PRF include high aggression, high impulsivity and reactivity, unmet needs for admiration/attention, and coping with tensions through play/distractions.  A narcissistic coping style is evident, in which self-esteem and pride are bolstered through self-aggrandisement.  Needs for achievement and perseverance are low, indicating a tendency to having given up trying.  He is not insightful or concerned with developing understanding, and his autonomy is under-developed.  In all, the profile is indicative of a damaged individual with strong needs for admiration, retarded in the development of independence, and beset by emotional pain which is transformed into anger and aggression when under the influence of drugs and alcohol.  The high impulsivity indicates the development of an acting-out coping style whereby behavioural solutions are sought for internal emotional problems.  This is a common feature in chronically antisocial individuals.

    Brief social history and substance use issues

    Much of the information presented here was derived from Mr Lawson, and information about his early childhood was offered by his mother.  A tendency to ‘big note’ himself was apparent, so some exaggeration of events is likely.  He is the eldest of 2 children born in New Zealand to a mother of Tongan heritage and a Black American father.  His parents separated and his mother came to Australia with the children.  Mr Lawson has limited recollections of his childhood apart from his involvement in gang activities involving fighting with other groups over racial issues, and smashing things.  He said that he was subjected to racial abuse and teasing, and that he and his peers would bash ‘anyone we didn’t like’.  He said he was expelled in Year 9 from Lockridge High School for fighting.  He attended another school until midway through Year 10, and left to join the work force.  He has held down a job as a furniture removalist for about 2 years.

    His mother said that she and Mr Lawson’s father lived together for about a year before he was born, and they separated permanently when Mr Lawson was aged 4, by which point they had another child.  She described her partner as a violent alcoholic who continually let her son down with unfulfilled promises about contact with the young Mr Lawson throughout his childhood, until she moved to Australia when he was aged 7 to try to give her children a better future.  She said that as a toddler her son would be dressed up, and ready with his backpack, waiting for his father to visit and take him out, but the father would not come, and he would ‘go teary’.  She also advised that about 5 years ago her son described a memory to her when he was aged about 3.  He had said, ‘I remember standing in the hallway:  I heard you swearing and crying.  I remember I wanted to come to you, and I couldn’t’. His mother added, ‘His father wouldn’t let me go to him and him to me.  He would scream, ‘Get back to bed’.’ She said she was subjected to domestic violence from the day he was born until she and the children came to Australia.  She advised that Mr Lawson’s father had been adopted at age 4, and the adoptive placement had broken down, so he had not enjoyed a positive upbringing.

    Mr Lawson indicated that he abuses alcohol and amphetamines in order to shut down upsetting feelings and experience a ‘high’.  He started drinking and using cannabis at 15, and at 16 started using amphetamines and ecstasy.  He said he had to have it all the time and would ‘do things’ to get money.  He said that by age 17 he was working within the Italian Mafia and dealing to supply his own drug needs.  At 19 he started his own ‘business’ dealing in drugs.  He indicated that he dealt in drugs in order to ‘make money, to buy cars and jewellery’. A desire to be ‘looked up to’ (admired) was reported.  Furthermore, he saw ‘looking good’ as helping him to attract and keep drug customers.

    He stated that the use of substances made him ‘invisible’ (meaning ‘invincible’): ‘Because you can do anything.  You don’t even have to think about it – you just do it’.  (It was confirmed that this meant that drugs gave him confidence and courage).  Furthermore, through the use of drugs and alcohol, ‘Things are different.  All your problems, all the things go away – like if you have a fight with your girlfriend:  nothing matters’.  However his main emotional upset was ‘not growing up with my Dad … It fucks your head’.  He said his father was involved in his life until about age 5.  A reunion occurred on a trip to New Zealand when he was 12.  However that turned into an upset, as his father promised to see him again the following day (on Mr Lawson’s birthday) but failed to show up.  He indicated that he had upset feelings in relation to his father:  ‘You just feel angry.  You get upset and you turn to alcohol and drugs, and nothing matters’.

    Mr Lawson reported a period of abstinence when he first developed a relationship with his long-term partner and was occupied with a long-term job as a removalist.  However the couple began experiencing frustration with having to work long hours and not achieving the material rewards they anticipated quickly enough.  That stress was a factor in Mr Lawson immersing himself in substance abuse and drug-related crime.

    During interview Mr Lawson became upset and tearful when discussing the issue of his father. The additional information from his mother indicates that an important emotional issue that warrants therapeutic attention is Mr Lawson’s vulnerability to feeling disappointment, as this seems to underlie both his abuse of substances and his aggressive acting out.  The fact that such feelings are close to the surface makes the prospect of therapeutic change a positive one.  (In many antisocial individuals their core upsets are unconscious, and therefore difficult to address therapeutically).

    Mr Lawson’s downward path into antisocial behaviour appears to have been promoted by life stresses and disappointments over the past several years that reawaken the pains created by paternal disappointment in childhood.

    Other psychological issues

    Violence features in Mr Lawson’s offending history and lifestyle, but he minimises the issue on account of only manifesting anger and aggression in recent years when intoxicated.  His mother offered the observation that Mr Lawson usually keeps his upset feelings to himself.  She said, ‘He buries it more’ than his brother ‘who actually shows it’.  This coping style could account for the exaggerated disinhibitory effects of intoxication leading to loss of control: ‘Johnathon just bottles it up, his anger, until he’s drinking or on drugs and then he just spills it.’

    Mr Lawson reported that he and his partner broke up for about 6 months in 2006 before resuming their relationship.  He attributed the break-up to ‘me being drunk all the time’.  His drinking was also associated with amphetamine use.  According to Mr Lawson’s mother, about 3 years ago Mr Lawson’s partner had an abortion against his wishes as he wanted to have and look after the child.  She felt that this disappointment had destabilised him and contributed to his decline.  She commented, ‘He’s certainly not over it.  I don’t think he’ll ever get over it, and forgive her’.  Another loss experienced by Mr Lawson was the death of a 19 year-old cousin in February 2008.

    Concluding remarks

    It would be advisable for Mr Lawson to address the issues that have been identified in this report whilst in custody.  The most significant of these issues is a vulnerability to disappointment stemming from paternal disappointment.  This vulnerability gets reactivated by current stresses and losses.  It is desirable for him to process the pain and grief arising from his childhood traumas, as the processing of historical pain will reduce his experience of anger and stress, and the associated need to use drugs and alcohol as palliatives.  Healing of his childhood-acquired wounds is likely to be associated with a decrease of in [sic] vulnerability to stress, although a general improvement in stress-management skills is also desirable.  The inclination to resolve emotional problems through behavioural acting-out will also need to be curbed if he is to be successful in turning his life around.  Mr Lawson expressed a willingness to participate in rehabilitative and self-improvement programmes at the earliest opportunity, but was frustrated that long waiting lists for programme participation existed in Acacia Prison, where he is currently placed.  A willingness to participate in both a violent offender’s treatment programme, and substance abuse programme, was expressed.

    In light of the circumstances contributing to the relapse involving the current offences, it is desirable that a positive support network, with opportunities for counselling, be put in place prior to release.” (Exhibit R2, G33)

1. The applicant submitted that the abovementioned reports are somewhat outdated, the most recent of them being over 12 months old, that “a lot can happen in a year”, and that the Tribunal should make an assessment of the risk of his re-offending “based on his attitudes and support network as at today”.  More specifically, the applicant submitted that:

   ·he is now showing a degree of insight into his drug use and subsequent offending behaviour that was not evident in the early stages of his offending;

   ·he now recognises that he must not continue to associate with drug users and offenders;

   ·he is now keenly aware that further wrongdoing will certainly trigger visa cancellation;

   ·he has shown remorse for his offending and this was reflected in McKechnie J’s preparedness to make a further order of parole eligibility;

   ·although the State Parole Assessment of 14 February 2011 referred to a “computer-generated” risk of reoffending score of 69.4%, the present degree of risk of his re-offending is reduced having regard to the passage of time, his present drug-free state, his completion of the “Pathways” program, and his present participation in the Narcotics Anonymous program, and is now “well below 50%”;

   ·he has an extensive support network whose support he now realises he needs and is willing to accept.

2. As regards rehabilitation, the Tribunal notes the numerous trade and educational courses which the applicant has completed during his periods of incarceration and especially the “Think First” program completed by the applicant on 2 December 2010 (see paragraph 43 above) and the “Pathways” program completed by the applicant on 14 December 2011 (see paragraph 45 above).  The Tribunal also notes that the applicant is presently attending a weekly Narcotics Anonymous program which commenced at the beginning of May 2013 at the Perth Immigration Detention Centre.

3. Having regard to the abovementioned “Think First” and “Pathways” program completion reports (see paragraphs 43 and 45 above), the Tribunal is satisfied that the applicant has made some progress towards rehabilitation but the extent of that progress is uncertain.  The Tribunal notes that, although each of the abovementioned program completion reports was generally positive in referring to gains which the applicant achieved from the program, each of them also expressed substantial reservations about the likelihood of the applicant’s refraining from drug use and offending behaviour in the future.  Each of those reports, furthermore, indicated that the applicant continued to have significant treatment needs.  In this connection, the Tribunal notes that, although the applicant was, in 2009, assessed as requiring, and recommended for participation in, a Violent Offending – High Intensity Program, he was unable to participate in that program owing to its unavailability prior to his release from prison in April 2013 (see Exhibit R1, G15; Exhibit R2, G33).  It remains the case that the applicant has not participated in a rehabilitation program relating to violent offending.

4. Although the applicant claims to have shown remorse for his offending, the Tribunal notes that:

   ·no reference is made to the applicant’s expressing remorse in any of the abovementioned reports (see paragraphs 42–45 above);

   ·the applicant did not, in his evidence at the hearing before the Tribunal, express remorse for, in particular, his serious offending in December 2007 and January 2009, or indicate an acceptance of responsibility for committing  those offences.

   The Tribunal notes, furthermore, the following relevant references:

   ·a Cognitive Skills – Initial Assessment – Outcome, dated 17 December 2009, in which the applicant was recommended for participation in the “Think First” program, states:

   “ … He displayed no victim empathy, laughing and claiming he was the victim.  He also indicated the police were injured as they should not have tried to stop the high speed chase he was involved in. …” (Exhibit R2, G33, p 179);

   ·a Program Non-Completion Report, dated 4 May 2011, regarding the applicant’s initial participation in the “Pathways” program in February 2011, prior to his being withdrawn from that program by the prison authorities because he was “deemed to be a flight risk”, states:

   “ … he did not display any effective commitment to learning new coping skills or strategies and appeared to have little empathy for his victims as indicated by comments such as ‘they shouldn’t be on the road at that time – they’re asking for trouble’.”  (Exhibit R2, G35, p 189).

5. Having regard to the evidence before the Tribunal and the considerations referred to in paragraphs 47–49 above, the Tribunal is not satisfied that the applicant is genuinely remorseful for his offending behaviour, including his serious offending involving offences of armed robbery in December 2007 and January 2009, or that he has fully accepted responsibility for that offending.  Nor is the Tribunal satisfied, having regard to the reservations expressed in the abovementioned “Think First” and “Pathways” program completion reports and to the fact that the applicant’s need for a rehabilitative treatment program addressing violent offending remains unmet, that the applicant has yet made substantial progress towards rehabilitation.

6. Although the applicant claims that he is now drug-free, the Tribunal notes that, on 23 November 2011 in Bunbury Regional Prison – during his participation in the “Pathways” substance abuse program from 7 October to 14 December 2011– he tested positive for cannabis metabolites.  Having regard to the applicant’s history of regular drug use and of his relapsing into drug use especially at times when he has been feeling angry, stressed or upset (see paragraphs 18, 19 and 42 above), the Tribunal cannot be confident that he will remain drug-free following his release from detention.  Nor can the Tribunal be confident, given the applicant’s history of offending when under the influence of illicit drugs, that he will remain crime-free following his release from detention.

7. Although the applicant submitted that the risk of his re-offending his now “well below 50%”, the Tribunal attaches little weight to that subjective assessment.  On the other hand, the Tribunal attaches great weight to the State Parole Assessment Report, dated 14 February 2011 (set out in paragraph 44 above), and, having regard to the contents of that report and the considerations referred to in paragraphs 48–51 above, the Tribunal regards it as likely that the applicant will engage in further serious criminal conduct following his release from detention.

8. In the event that the applicant does engage in further criminal or other serious conduct in the future, the Tribunal expects that the nature of the harm that will thereby be caused to members of the Australian community will be comparable to that which has been caused by the applicant’s serious offending in the past – especially in December 2007 and January 2009 – namely armed robbery or other offences against property accompanied by violence or the threat of serious violence.

9. In the Tribunal’s opinion the risk of future serious harm to the Australian community by the applicant is significant and constitutes a risk in respect of which the Australian community would understandably have a low tolerance.

   Conclusion regarding protection of the Australian community

10. Having regard to the considerations referred to in paragraphs 39–54 above, the Tribunal concludes that the “primary consideration” regarding “protection of the Australian community from criminal or other serious conduct”, referred to in paras 9(1)(a) and 9.1 of the Direction, weighs heavily in favour of cancellation of the visa.

    The strength, duration and nature of the person’s ties to Australia

11. Paragraph 9.2 of the Direction states as follows:

    “ 9.2     Strength, duration and nature of the person’s ties to Australia

    (1)   Reflecting the principles at 6.3, decision-makers must have regard to:

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

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

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

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

12. The applicant has, apart from a period of approximately two months in April–June 1998 resided in Australia from September 1993 to date, having arrived in Australia at the age of 7 years.  He is now almost 27 years of age.

13. The applicant submitted that, having spent his formative years in Australia, his cultural identity has been “shaped” in Australia and that he has no Maori or New Zealand cultural links and considers himself to be “proudly Australian”.

14. The Tribunal accepts that, having arrived in Australia, at the age of 7 years and having lived in Australia for over 19½ of his (almost) 27 years, the applicant has strong cultural ties to Australia.  The Tribunal also accepts that the applicant has strong family and social ties to Australia, comprising his mother, brother and grandfather and, in addition, those friends and associates who appeared as witnesses or wrote letters of support (see paragraphs 25–33 above and Exhibit R1, G21–G25).

15. In the Tribunal’s opinion, however, the applicant has made little, if any, positive contribution to the Australian community in the period in which he has lived in Australia.  According to his own evidence, his only employment in Australia has comprised relatively short-term periods of employment as a “brickie’s labourer”, a cabinet worker, and a metal worker when he was 16-17 years of age, followed by employment as a removalist “off and on” for about 5 years.  On the other hand, he commenced offending at the age of 17 years and continued to offend thereafter on a frequent basis, culminating in his imprisonment from December 2007 (when aged 21 years) for about 12 months, followed by further serious offending in January 2009 (when aged 22 years) and imprisonment until April 2013 when he was placed in immigration detention.

16. Notwithstanding the considerations referred to in paragraph 59 above, the Tribunal, having regard to the considerations referred to in paragraph 60 above and also to the fact that the applicant’s serious offending in December 2007 and January 2009 occurred while he was subject to, respectively, a community based order and parole, is of the opinion that the level of the Australian community’s tolerance of, in particular, the applicant’s serious offending would be relatively low.

17. In the Tribunal’s assessment, however, this “primary consideration”, because of the considerations referred to in paragraph 59 above, weighs against cancellation of the visa, but the considerations referred to in paragraphs 60–61 above substantially detract from the weight that the Tribunal would otherwise have given to this “primary consideration”.

    The best interest of minor children in Australia

18. It is common ground that there is no minor child in Australia who would be affected by a decision to cancel, or not cancel, the visa.

19. Accordingly this “primary consideration” is not relevant to the applicant’s case and, consistently with para 8(1) of the Direction, the Tribunal has not taken it into account.

    Whether Australia has international non-refoulement obligations to the person

20. Paragraph 9.4 of the Direction states:

    “ 9.4     International non-refoulement obligations

    (1)   In cases where claims which may give rise to international non-refoulement obligations are raised by the person or are clear from the facts of the case, they must be given consideration if the person is in Australia.

    …

    (3)Australia has non-refoulememnt obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); and the International Covenant on Civil and Political Rights (ICCPR) and its Second Optional Protocol. …”

21. The applicant has not raised any claim which may give rise to international non-refoulement obligations; nor is any such claim clear from the facts of the applicant’s case.  Accordingly, pursuant to para 9.4(1) of the Direction, the Tribunal is not required to consider such matters.

22. This “primary consideration” is, therefore, not applicable or relevant to the applicant’s case and, consistently with para 8(1) of the Direction, the Tribunal has not taken it into account.

    Other relevant considerations

23. Paragraph 10 of the Direction states as follows:

    “ 10     Other considerations – visa holders

    (1)   In deciding whether to cancel a visa, other considerations must be taken into account where relevant.  These considerations include (but are not limited to):

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

    (b)Impact on Australian business interests;

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

    (d)The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (i)   The person’s age and health;

    (ii)  Whether there are substantial language or cultural barriers; and

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

    Having regard to the evidence before it, it seems to the Tribunal that the considerations referred to in subparas (a), (c) and (d) of para 10(1) of the Direction are relevant to the applicant’s case.  The Tribunal notes, however, that the list of considerations set out in para 10(1) is not exhaustive.

    Effect of cancellation of the visa on the applicant’s immediate family in Australia

24. Although neither the applicant’s mother (in her witness statement and oral evidence) nor his brother (in his letter of 4 May 2013) expressly described the effect which the removal of the applicant from Australia to New Zealand, following cancellation of the visa, would have on them, the Tribunal is prepared to assume that each of them would suffer great emotional distress in that event.  The Tribunal is also prepared to assume that the applicant’s maternal grandfather would also be emotionally distressed thereby.

25. The Tribunal is, furthermore, prepared to assume that those members of the Australian community, who gave evidence in support of the applicant’s case or wrote letters of support which were tendered in evidence, would experience at least disappointment if the visa was cancelled and the applicant was removed from Australia to New Zealand.

26. Each of the persons referred to in paragraphs 69 and 70, however, would presumably be able to keep in contact with the applicant in New Zealand by telephone and Skype, as well as by email, other electronic means, and letters.  The Tribunal notes, furthermore, that the applicant’s mother has visited New Zealand in 1998, 2008, 2009 and, most recently, in March 2012 and would presumably be able to visit the applicant in New Zealand from time to time.

    The extent of any impediments that the applicant may face if removed from Australia to New Zealand

27. The Tribunal is not satisfied that the applicant would experience any impediments in New Zealand by reason of his present age and state of health or by way of language or cultural barriers.  The Tribunal assumes, furthermore, that, as a New Zealand citizen, the applicant would be eligible to access the social welfare, public health and public adult education systems in that country.

28. The Tribunal has also had regard to the likely impact on the applicant of his removal from Australia to New Zealand.  In this connection the Tribunal notes the applicant’s evidence and submissions regarding:

    ·the lack of family and social support that would be available to him in New Zealand – in particular, the expected lack of interest and support from his biological father who lives in New Zealand, and the lack of a social network in New Zealand;

    ·the risk of his suffering physical harm from his uncle (his mother’s brother) who lives in New Zealand and who is associated with members of the “Mongrel Mob” gang and is a convicted drug offender.

29. As regards the applicant’s father, the Tribunal notes that, in the “Pathways” Program Completion Report, dated 6 January 2012, it is stated that, in the course of that program, the applicant “advised that he had resumed contact with his father and may live with him if deported back to New Zealand” (see Exhibit R2, G36, p 191).  Although in his evidence at the hearing the applicant said that he did not know whether his father still lives in New Zealand, Ms Lawson, in her evidence, said that the applicant’s father lives and works in Christchurch, has 5 children, and has recently remarried.  The Tribunal is not satisfied that the applicant would necessarily be denied support from his father in New Zealand if he decided to seek it.

30. As regards the applicant’s uncle in New Zealand, the Tribunal is not satisfied that the applicant would be unable to avoid him and would be likely to suffer physical harm from him in New Zealand.

31. Finally, the Tribunal accepts that the applicant would feel disappointed and upset if the visa was cancelled and he was removed from Australia to New Zealand.  The Tribunal also accepts that his prospects of rehabilitation would be less favourable in New Zealand than in Australia, primarily because, in New Zealand, he would not have the benefit of the close physical presence of the support network which he would have in Australia.  The Tribunal, however, has no reason to doubt that appropriate rehabilitation programs and support groups would be available to the applicant in New Zealand if he chose to pursue them and that he would be able to further his rehabilitation in New Zealand if he was sufficiently motivated to do so.

    Conclusion regarding other relevant considerations

32. The other relevant considerations referred to in paragraphs 69–76 above all weigh, to a greater or a lesser extent, against cancellation of the visa.  In the Tribunal’s assessment, however, the collective weight of those considerations is significantly less than the weight which the Tribunal attaches to the “primary consideration” regarding “the protection of the Australian community from criminal or other serious conduct”.

    Conclusion – the Preferable Decision

33. As required by para 7(1)(a) of the Direction, the Tribunal, informed by the principles in para 6.3, has taken into account the relevant “primary considerations” and the other relevant considerations in this case and has assessed the weight which, in its opinion, it is appropriate to give to each of those “primary considerations” and other considerations.

34. In the Tribunal’s assessment, in the circumstances of this case, the greatest weight should be given to the “primary consideration” regarding “the protection of the Australian community from criminal or other serious conduct” which weighs in favour of cancellation of the visa.

35. As regards the other relevant “primary consideration” regarding “the strength, duration and nature of the [applicant’s] ties to Australia”, the Tribunal has had regard to the principle (referred to in para 6.3(4) of the Direction) that “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” (emphasis added).  The Tribunal is of the opinion, however, that, having regard to the circumstances of this case, and for the reasons explained in paragraphs 50–54, 60–61 above, the level of tolerance of the applicant’s record of criminal offending – especially his serious criminal offending in December 2007 and January 2009 – which would be afforded to the applicant by the Australian community is, notwithstanding that he arrived in Australia at the age of 7 years and has lived in Australia for approximately 19½ of his (almost) 27 years, relatively low.  Accordingly, in the Tribunal’s assessment, the weight that should be given to this “primary consideration”, having regard to the circumstances of the applicant’s case, is significantly less than the weight which should be given to the “primary consideration” regarding “the protection of the Australian community from criminal or other serious conduct”.

1. The Tribunal’s overall assessment is that the “primary consideration” regarding “the protection of the Australian community from criminal or other serious conduct”, which weighs heavily in favour of cancellation of the visa, clearly outweighs the “primary consideration” regarding “the strength, duration and nature of the [applicant’s] ties to Australia” and those other relevant considerations (referred to in paragraphs 69–76 above) which weigh against cancellation of the visa.

2. Having regard to all the circumstances of this case, the Tribunal concludes that:

   ·the significant risk of future serious harm to the Australian community presented by the applicant is unacceptable and should not be tolerated by the Australian community; and

   ·the applicant has forfeited the privilege of continuing to hold the visa and of remaining in Australia.

3. Accordingly, the preferable decision in this case is that the visa be cancelled under s 501(2) of the Act.

   Decision

4. For the above reasons the decision under review is affirmed.

I certify that the preceding 84 (eighty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop.

.........[sgd D Brodie]........................................

Administrative Assistant

Dated 24 May 2013

Date of hearing	16 May 2013
Representative of the Applicant	Mr D Estrin
Solicitors for the Applicant	Fragomen
Representative of the Respondent	Mr L Nguyen
Solicitor for the Respondent	Australian Government Solicitor