Johnstone and Minister for Immigration and Border Protection (Migration)
[2017] AATA 1589
•2 October 2017
Johnstone and Minister for Immigration and Border Protection (Migration) [2017] AATA 1589 (2 October 2017)
Division:GENERAL DIVISION
File Number(s): 2017/4190
Re:Aaron Johnstone
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:L M Gallagher, Member
Date:2 October 2017
Place:Perth
The decision under review is affirmed.
........................................................................
L M Gallagher, Member
CATCHWORDS
IMMIGRATION – Class TY Subclass 444 (temporary) visa – non-revocation of mandatory cancellation of visa – applicant did not pass character test and had served term of imprisonment – visa mandatorily cancelled under subsection 501(3A) Migration Act 1958 (Cth) – whether discretion in subsection 501CA(4) to revoke mandatory visa cancellation should be exercised – Direction No. 65 – primary and other relevant considerations – protection of the Australian community from criminal or other serious conduct – nature and seriousness of the conduct – risk to the Australian community should further offences be committed – best interests of minor children - expectations of the Australian community - other relevant considerations – strength, nature and duration of ties to Australia – extent of impediments if removed from Australia - discretion should not be exercised to revoke visa cancellation - decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) – sections 189, 499(1) and (2A), 500(1), 501(3A), 501CA, 501(6), 501(7)
CASES
Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Leota and Minister for Immigration and Border Protection [2017] AATA 1365
SECONDARY MATERIALS
Minister for Immigration and Border Protection, Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014 – paragraphs 6.2, 6.3, 7(1), 8(1), 13(2), 13.1(1), 13.1(2), 13.1.1, 13.1.2, 13.3(1), 14(1)(b) and (e), 14.2(1), 14.5
REASONS FOR DECISION
L M Gallagher, Member
2 October 2017
INTRODUCTION
This is an application lodged under subsection 500(1)(ba) of the Migration Act 1958 (Cth) (‘the Migration Act’) for a review of a decision of a delegate for the Minister of Immigration and Border Protection (‘the Minister’) dated 10 July 2017 (G11) not to revoke the mandatory cancellation (by virtue of subsection 501(3A) of the Migration Act) of Mr Johnstone’s Class TY Subclass 444 (temporary) visa (‘the visa’) pursuant to subsection 501CA(4) of the Migration Act. Relevantly, the delegate found that Mr Johnstone had been sentenced to a term of imprisonment of 12 months or more and hence had a substantial criminal record as per subsection 501(7)(c) of the Migration Act. Therefore, Mr Johnstone had not satisfied the delegate that he had passed the “character test” by virtue of subsection 501(6)(a) of the Migration Act.
Having found that Mr Johnstone had not satisfied the character test, the delegate considered whether there was another reason why the mandatory visa cancellation decision should be revoked, in accordance with subsection 501CA(4)(b)(ii) of the Migration Act and as per the requirements of the Minister for Immigration and Border Protection, Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014 (‘Direction No. 65’). The delegate was not satisfied that there was another reason and decided that Mr Johnstone’s visa remains cancelled.
BACKGROUND FACTS AND PROCEDURAL HISTORY
Mr Johnstone is a 43 year old citizen of New Zealand. Mr Johnstone first arrived in Australia on 17 February 1998 and departed Australia on six occasions between 1999 and 2004 (G26, page 108). Mr Johnstone has remained in Australia since his most recent arrival on 22 March 2004 (G26, page 108).
Mr Johnstone has a history of offending in New Zealand as follows (G9, page 29):
(a)On 3 July 1992, Mr Johnstone was convicted of wilful damage, with reparation costs of $151.88.
(b)On 28 December 1992, Mr Johnstone was convicted of minor drink/consume public place and fined $100.00.
(c)On 23 April 1995, Mr Johnstone was convicted of fighting in a public place and fined $125.00.
(d)Also on 23 April 1995, Mr Johnstone was convicted of resisting police and fined $200.00.
(e)On 4 November 1995, Mr Johnstone was convicted of fighting in a public place and ordered to pay costs.
(f)On 11 February 1997, Mr Johnstone was convicted of common assault and fined $250.00.
Mr Johnstone has a history of offending in Australia as follows (G12, pages 53 and 54):
(a)On 15 March 2002, Mr Johnstone was convicted of driving under the influence and driving without a licence, fined a total of $1,150.00 and disqualified from driving for 9 months.
(b)On 28 November 2012, Mr Johnstone was convicted of driving “in excess of 0.05g/100ml,” fined $600 and disqualified from driving for 8 months.
(c)On 31 January 2014, Mr Johnstone was convicted of driving without authority (disqualified/suspended licence), fined $1,000.00 and disqualified from driving for 9 months (cumulative).
(d)On 1 May 2014, Mr Johnstone was convicted of aggravated assault occasioning bodily harm and sentenced to a 12 month community based order concurrent from 1 May 2014.
(e)On 6 May 2014, Mr Johnstone was convicted of driving “in excess of 0.08g/100ml” and driving without authority (disqualified/suspended licence), fined a total of $2,700.00 and disqualified from driving for 14 months (concurrent) and 9 months (cumulative).
(f)On 30 April 2015, Mr Johnstone was convicted of breaching a community order without reasonable excuse and breach of the community based order of 1 May 2014, fined $100.00 and given a suspended sentence of 6 months and 1 day imprisonment, suspended from 30 April 2015.
(g)On 27 October 2015, Mr Johnstone was convicted of:
(i)Aggravated burglary and “commit offence in place” and sentenced to 2 years and 6 months imprisonment from 27 October 2015 (head sentence); and
(ii)re-offending whilst subject to a community order and sentenced to 4 months imprisonment (cumulative) from 27 October 2015 (total: 34 months imprisonment from 27 October 2015).
(h)On 25 January 2016, Mr Johnstone was convicted of two counts of breach of violence restraining order and fined a total of $700.00.
With regard to Mr Johnstone’s conviction dated 1 May 2014, the assault was in the nature of domestic violence committed against Mr Johnstone’s then partner in December 2013 (G13, page 61).
With regard to Mr Johnstone’s convictions dated 27 October 2015, on 2 June 2014, Mr Johnstone and another offender went to the victim’s home to recover a fine for drink driving incurred by the victim’s girlfriend. After knocking on the victim’s door and the victim answering and identifying himself, Mr Johnstone and the other offender forcibly entered the victim’s home where Mr Johnstone repeatedly punched the victim in the face nine or ten times. His co-accused separately assaulted the victim and did some property damage (G13, page 57).
On 1 February 2017, Mr Johnstone was sent a Notice of visa cancellation under subsection 501(3A) of the Migration Act (G3, page 9). That notice invited Mr Johnstone to make representations about revocation of the cancellation decision.
On 16 February 2017, Mr Johnstone made a request for revocation of the mandatory cancellation and made representations in support of his request (G5, page 16).
On 10 July 2017, a delegate of the Minister decided, under subsection 501CA(4) of the Migration Act, not to revoke the visa cancellation decision dated 1 February 2017 (G11, page 40).
As a result of the refusal, Mr Johnstone became an unlawful non-citizen and was detained pursuant to section 189 of the Migration Act.
On 17 July 2017, Mr Johnstone applied to this Tribunal for review of the decision not to revoke his visa cancellation (G2, page 3), the reason being that “the decision is wrong in that visa cancellation should have been revoked” (G2, page 7).
ISSUES
The issues for consideration by this Tribunal are:
·whether Mr Johnstone passes the “character test”; and
·if not, if there is another reason why the original decision to cancel Mr Johnstone’s visa should be revoked, taking into account the relevant considerations in Direction No. 65.
EVIDENCE
This matter was heard in Perth on 21 September 2017. Mr Johnstone appeared in person and was self-represented. The Minister was represented by Ms Elle Tattersall from Sparke Helmore Lawyers.
The evidence before the Tribunal consisted of:
·a 144 page set of G documents (G1 to G29) (R1);
·extracts from documents produced under summons (R2); and
·the Respondent’s Statement of Facts, Issues and Contentions (‘SFICs’) dated 11 August 2017 (R3).
Mr Johnstone gave oral evidence. Although Mr Johnstone did not provide a witness statement as such, the Tribunal has noted and treated as Mr Johnstone’s evidence the following documents that appear in the G Documents:
·Applicant personal circumstances form and request for revocation of visa cancellation, both dated 3 February 2017 (G14, pages 65 to 78);
·Submission from Migration Agent dated 17 March 2017 (G15, pages 79 to 84); and
·Submission from Migration Agent dated 20 June 2017 (G10, page 34).
Mr Grant Johnstone, the Applicant’s brother, gave oral evidence by telephone. The Tribunal notes the letter from Grant Johnstone dated 13 March 2017 (G16, page 85) in this regard.
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
CONSIDERATION
Does Mr Johnstone pass the character test?
Pursuant to subsection 501CA(4) of the Migration Act, the Minister (and the Tribunal standing in the Minister’s shoes) may revoke a decision made under subsection 501(3A) of the Migration Act to cancel a visa that has been granted to a person if:
(a)The person makes representations in accordance with the invitation; and
(b)The Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
[emphasis added].
As summarised by Senior Member Popple in the decision of Leota and Minister for Immigration and Border Protection [2017] AATA 1365 at [13]:
In Gaspar v Minister for Immigration and Border Protection, the Federal Court explained:
… s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.[1]
In other words, as the Full Court of the Federal Court pointed out in Marzano v Minister for Immigration and Border Protection, “‘may’ in s 501CA(4)(b) means ‘must’”.[2] The Full Court also noted:
… the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds “any” reason why the cancellation decision “could” be revoked”. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation.[3]
[1] (2016) 153 ALD 338 at 345 [38] per North ACJ.
[2] [2017] FCAFC 66 at [31] per Collier J, with whom Logan and Murphy JJ agreed at [59] and [60]. See also at [30]–[32] per Collier J.
[3] [2017] FCAFC 66 at [32] per Collier J, with whom Logan and Murphy JJ agreed at [59] and [60].
In accordance with subsection 501CA(4)(b)(i) of the Migration Act, the Tribunal must first consider whether Mr Johnstone passes the “character test” as that term is defined in subsection 501(6) of the Migration Act.
Subsection 501(6)(a) of the Migration Act provides that a person does not pass the “character test” if the person has a substantial criminal record (as defined by subsection (7)).
Subsection 501(7)(c) of the Migration Act relevantly provides that for the purposes of the “character test”, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
As noted at subparagraph 5(g) above, on 27 October 2015 Mr Johnstone was convicted in the District Court of Western Australia and sentenced to 34 months imprisonment (G13, page 63).
As a consequence of receiving a sentence in excess of 12 months, Mr Johnstone is deemed to have a substantial criminal record and does not pass the “character test” set out in subsection 501(6)(a) of the Migration Act. Mr Johnstone did not assert otherwise before this Tribunal.
Accordingly, and on the evidence before it, the Tribunal finds that Mr Johnstone does not pass the “character test” as that term is defined in the Migration Act.
Is there another reason why the original decision that cancelled Mr Johnstone’s visa should be revoked?
Having determined that Mr Johnstone does not pass the “character test” because he has a substantial criminal record having been sentenced to a term of imprisonment of 12 months or more, the Tribunal must now determine whether, in accordance with subsection 501CA(4)(b)(ii) of the Migration Act, there is another reason why the original decision that cancelled Mr Johnstone’s visa should be revoked.
On 22 December 2014, the Minister, in accordance with its powers under subsection 499(1) of the Migration Act, issued Direction No. 65. Direction No. 65 commenced on 22 December 2014 and is binding on all decision-makers from that date (subsection 499(2A) of the Migration Act). It provides guidance to the Tribunal on the application of the “character test” and the exercise of its discretion. Relevantly, the Preamble to Direction No. 65 (at paragraph 6) states:
6.1 Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501 (3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
(4)The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501 CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
…
Paragraph 6.2 of Direction No. 65 provides general guidance to the Tribunal in relation to the exercise of the discretion to revoke a decision to cancel a visa. It provides:
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-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501 CA. 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, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No. 65 sets out a number of principles, including the following:
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)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)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.
(4)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.
(5)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.
(6)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.
(7)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.
[emphasis added]
Subparagraph 7(1) of Direction No. 65 provides guidance as to how this discretion is to be exercised. Relevantly, subparagraph 7(1)(b) of Direction No. 65 states:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
…
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Sub-paragraphs 8(1) and 8(4) of Direction No. 65 respectively state:
8. Taking the relevant considerations into account
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case.
…
(4)Primary considerations should generally be given greater weight than the other considerations.
In relation to Mr Johnstone’s application, Part C of Direction No. 65 sets out the considerations that are relevant in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa. These considerations are addressed below.
Primary considerations
Subparagraph 13(2) of Direction No. 65 sets out the following three “primary considerations” that must be taken into account in deciding whether to refuse a person’s visa:
(a)Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia; and
(c) Expectations of the Australian Community.
Each of the three “primary considerations” is addressed in relation to Mr Johnstone below.
(i) Protection of the Australian community from criminal or other serious conduct
In relation to subparagraph 13(2)(a) of Direction No. 65 (i.e. protection of the Australian community), subparagraph 13.1 of Direction No. 65 provides:
13.1 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 Australian 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 of the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) The nature and seriousness of the non-citizen’s conduct to date
In relation to sub-paragraph 13.1(2)(a) of Direction No. 65 (i.e. the nature and seriousness of the non-citizen’s conduct to date), subparagraph 13.1.1 of Direction No. 65 relevantly provides:
(1)In considering the nature and seriousness of the non-citizen’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;
…
(d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
…
(f)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
…
[emphasis added]
In determining whether Mr Johnstone’s conduct should be viewed as serious, the Tribunal notes the facts of his offences and the sentences imposed by courts for aggravated burglary and aggravated assault occasioning bodily harm (the offences for which Mr Johnstone was respectively sentenced and re-sentenced on 27 October 2015). The Tribunal notes, in particular, the sentencing remarks of His Honour Justice Goetze dated 27 October 2015 (G13, pages 55 to 63). His Honour’s summary of Mr Johnstone’s conduct, the explanation for the conduct and considerations with respect to sentencing is as follows (G13, from page 56):
“You’ve got a bit of a problem with alcohol and a limited insight into the effect of alcohol on your behaviour…
…You concede deficits in your emotional regulation, your consequential thinking and your problem solving-skills. Since this offence you’ve started seeing a psychiatrist, but you need a domestic violence program and it seems that domestic violence has been part of a dysfunctional background you had with your parents because you saw that violence at home.
…
…- well, there are photographs of the complainant’s hand.
Now, I accept that you didn’t cause that injury, but you were party to it. There’s also other photographs here of his person and I think you can well understand that the person at home, when two of you come in, suffers quite a frightening experience by reason of what you and your co-offender did.
…
…Now, burglary is a serious matter. You might not see this as burglary, but you’ve broken into someone’s home. You were in the home without the consent of [the victim] and people like him can expect to be safe in their own home and to not have people like you break in to assault him.
They feel that their property has been invaded and in this case the personal rights of [the victim] have also been invaded. You’ve confronted the homeowner. You might expect him to put up some resistance. When you have a confrontation with a homeowner there’s always the risk that something will go seriously wrong.
It may not be what you expect, but it may well have gone wrong. He might have fallen down, for instance, knocked his head on the way on a bench table or something or just hit his head on the ground and may have died as a result. As if that were to have happened you’d have been down at the Supreme Court on more serious charges than perhaps you’re now facing.
Now, that didn’t happen, but it’s really more by good luck than good management and what you need to be aware of is that the courts cannot simply permit home invasions for the purpose of securing payment of money or revenge to go without an appropriate penalty.
…I’ve had regard to the available options. Imprisonment is imposed as a penalty of last resort. It’s not imposed unless the seriousness of the offence justifies it or the protection of the community requires it. It seems to me that for both those reasons your offending does require a term of imprisonment.”
[emphasis added]
In oral evidence before this Tribunal, Mr Johnstone said that while he never denied that the assault took place, it never occurred to him that it would upset his family and friends (in the way that it has).
Mr Johnstone said that when the sentencing Judge had handed down the sentence, he realised that “this is it.” Mr Johnstone said that prison was a “saviour” and gave him the chance to sit back and say “this is this” and “this is that” and get help.
Mr Johnstone said that he agreed with what the sentencing Judge had said about the seriousness of his offences and that he feels remorseful.
Mr Johnstone said that the situation (regarding the events surrounding the aggravated burglary) “snowballed out of control” and that on the day of the burglary he “was with other people and did not know he was going there” (to the victim’s home).
Mr Johnstone said that he had pleaded guilty to “get it over and done with” and due to “money factors,” so he could get back to work and also because he was guilty.
When asked by Ms Tattersall about the facts surrounding the aggravated assault occasioning bodily harm (R2, page 20), Mr Johnstone said that he had had “half a dozen beers that day, 500ml Heineken cans” and that “he blew zeros when the police turned up” but that “she [his ex-wife] was over the limit.” Mr Johnstone said that he and his ex-wife “were only married for a short period of time” and that his ex-wife “had plans to caveat the house” and then “went off with her boyfriend to Mackay” although he “doesn’t blame anyone” for what happened.
As to the police having been called for a number of disturbances he was reported to have been involved in (R2 pages 8, 9, 17 and 64), Mr Johnstone said that he accepts that the actual incidents took place, although he disagreed with some of the factual aspects recorded. For example, the incident on 15 March 2004 (R2, page 8) records the complainant being female however Mr Johnstone said that he had been the one to call the police regarding the disturbance. Mr Johnstone also said that the record for the incident on 9 June 2013 (R2, page 17) failed to record that he had asked attending officers to take a picture of his bleeding nose and they had said “he was alright.”
While Mr Johnstone said that he agreed with Ms Tattersall that he was convicted of a number of offences in New Zealand prior to living in Australia, when asked if some of those offences involved violence, Mr Johnstone asked Ms Tattersall to “define violence.” When Ms Tattersall gave the examples of Mr Johnstone having been convicted of common assault and fighting in a public place (G9, page 29), Mr Johnstone asked “does a push count as violence?” Mr Johnstone said that the “police came around the corner and saw him” but that the “other guy had hit him” and so “that is where resisting arrest came into play.”
When asked by Ms Tattersall, Mr Johnstone said that he did not accept that he has a history of blaming other people, he just doesn’t think he was abusive and uncooperative with police in the way that was recorded on those occasions (for example, R2, page 9). Mr Johnstone also said that “he was not one for negative stuff,” “hates it to the bones” and “would rather plead guilty and get it over with.”
Mr Johnstone said he has “four DUIs, GBH and an assault, that’s it,” asked the Tribunal to “look at where he has come from” and said that he “wants to go forward.” Mr Johnstone said that his offences “were not gang related,” that “he is not a child molester, murderer or rapist,” that “he made a bad decision, went around and clopped someone twice” and that it “wouldn’t happen again.”
Ms Tattersall directed Mr Johnstone to the following extract from the Statement of Breach Facts regarding the community order imposed following assault that took place on 1 May 2014 (R2, page 37):
“During supervision Johnstone has frequently complained about the [community based] Order and apportioned blame of the offence on the victim.”
When asked by Ms Tattersall whether this was a circumstance in which he blamed the victim, Mr Johnstone said that “he didn’t blame her,” “they [the police] wanted him to admit to something he didn’t do.”
When Ms Tattersall directed Mr Johnstone to the Statement of Material Facts regarding his aggravated burglary and commit offence in place (R2, page 43) in particular the reference to “…the accused…denied the offence stating that he had never met the victim before in his life” Mr Johnstone said he “never met him [the victim] until he assaulted him.” Mr Johnstone said that he “knows what took place” and he “wore it.”
When asked by Ms Tattersall as to whether he could have decided not to attend the victim’s home on the day of the aggravated burglary and commit offence in place, Mr Johnstone said that “he was in the car,” “he couldn’t get out of the car,” “therefore he couldn’t not go ahead,” he “didn’t know he was going there until the last minute,” “he wasn’t going there for anything,” the offence “wasn’t planned.” Mr Johnstone said that while he had knocked on the victim’s door and asked “are you [the victim]?” he did not forcibly enter the victim’s home.
As to the reference in the Statement of Material Facts regarding his aggravated burglary and commit offence in place (R2, page 43) to Mr Johnstone having said to the victim, “if you don’t pay the fine by Monday, I’ll kill you,” Mr Johnstone said that that charge had been withdrawn “as it never happened.” Mr Johnstone said that “from his point of view, all he did was punch the victim,” that there was “no kicking or elbows or nothing” and that “the beer bottle, the TV” was “all his co-accused.”
Mr Johnstone said that his problem with alcohol has been longstanding and one that he has addressed while in prison as the prison environment provided the opportunity for him to complete a number of courses. Mr Johnstone said that he is involved with Alcoholics Anonymous which he intended to continue on with in the community.
Mr Johnstone asked the Tribunal to consider the fact that he did not offend between 2002 and 2012 and that it was from 2012 through to 2016 that he “went downhill.”
Mr Johnstone’s brother gave oral evidence to the Tribunal that he thought his brother Aaron was just going to get a slap on the hand (for his offences).
When asked by Ms Tattersall, Mr Johnstone’s brother said that until the point in time that he first saw his brother at the detention centre and his brother “handed him an envelope with all the charges,” he “wasn’t 100% aware” of his brother’s criminal history. Mr Johnstone’s brother also said that “Aaron thinks some of the charges aren’t as serious as they are” and that “he (Aaron, by pleading guilty) just wanted to get rid of all the charges and move on.”
When asked by Ms Tattersall as to how he could say that his brother’s offences were “definitely a one-off mistake” (G16, page 85) when he was, at the time of that statement, unaware of Mr Johnstone’s complete offending history, Mr Johnstone’s brother said he “only thought (that his brother was) up for the aggravated assault/burglary charge” and “didn’t realise there was going to be a prison sentence.” Mr Johnstone’s brother said that he had “confronted Aaron about it” but “Aaron felt it wasn’t as severe as he (Grant) was making out.”
In relation to Mr Johnstone’s offences, the Minister, in its SFICs dated 11 August 2017 (R3), contended that Mr Johnstone’s crimes should be viewed as serious for the following reasons:
(a)Mr Johnstone’s crimes attracted a sentence of imprisonment (for a total period of 34 months), noting that sentences of imprisonment are the last resort in the sentencing hierarchy and that, accordingly, any such sentence must be viewed as a reflection of the objective seriousness of the offence involved (R3, paragraph 26).
(b)Mr Johnstone has been convicted of assaulting his then wife (G13, page 58) and has been the subject of a violence restraining order. Mr Johnstone was charged with breaching that violence restraining order on 25 January 2016 (R4, paragraph 27). The Minister cites the case of Ahori and Minister for Immigration and Border Protection [2017] AATA 601 where the Tribunal found that a domestic violence offence was serious offence, despite, in that case a character reference being provided by the victim of the violence in favour of the applicant.[4]
[4] The Minister notes (R3, paragraph 28) that although Ahori was a decision which concerned whether the applicant was of good character for the purpose of a citizenship application, the Tribunal has recently cited Senior Member Sosso’s comments in Ahori with approval in Holland and Minister [2017] AATA 1104, a matter that concerned the application for review of a decision made under section 501CA of the Migration Act.
At hearing, Ms Tattersall contended further that Mr Johnstone’s oral evidence indicated that he continues to seek to mitigate his offending behaviour on the basis that he was provoked and still fails to understand that his offending history is serious.
The Tribunal notes that, in considering the nature and seriousness of Mr Johnstone’s offences, in particular, the offences for which Mr Johnstone was convicted on 1 May 2014 and on 27 October 2015 (see subparagraphs 5(d) and 5(g) above) they are offences that are viewed seriously, which is reflected in Direction No. 65 and by the sentencing remarks of His Honour Justice Goetze. As noted by the Minister, sentences involving terms of imprisonment are the last resort in the sentencing hierarchy. Mr Johnstone’s term of imprisonment of 34 months reflects the seriousness of Mr Johnstone’s conduct against the community. The Tribunal also notes the sentencing remarks that a person should expect to be safe in their own home and that it was more by good luck than good management that the victim did not die as a result.
The Tribunal notes the aggravated assault occasioning bodily harm for which Mr Johnstone initially received a 12 month community based order is of particular seriousness, given that the assault was in the nature of domestic violence committed against his then partner. The Tribunal notes the widespread public concern about domestic violence and the vulnerability of its victims.
The Tribunal notes that Mr Johnstone has an extensive history of offending in New Zealand and Australia, with many of those offences involving alcohol and a number of those offences involving violent conduct.
The Tribunal notes that Mr Johnstone has failed to comply with a number of licence suspensions/disqualifications and with the community based order imposed on him following his conviction of aggravated assault occasioning bodily harm.
The Tribunal has also taken into account the fact that at the time of Mr Johnstone’s violent offences (2013 to 2015) his alcohol abuse and undiagnosed mental illness may have influenced his offending behaviour, it cannot be said that those factors reduce his responsibility for those actions. However, the Tribunal does note that Mr Johnstone has abstained from alcohol for some 17 months (and has made contact with an external facility to continue with Alcoholics Anonymous) and has sought treatment for his depression and anxiety.
The Tribunal finds that while Mr Johnstone is sorry for his offending conduct, given certain aspects of his and his brother’s oral evidence (that he pleaded guilty for efficiencies of time and money, that his brother thought he would get a slap on the hand for his offending, that his brother thought he was downplaying the seriousness of the offences and his inability to conceive some of his conduct as violent even though he punched the victim twice), it cannot be satisfied that Mr Johnstone has accepted full responsibility for his actions or that he understands or accepts the seriousness of his offences, including some of them being violent in nature.
The Tribunal also considers this finding to be compounded by the fact that Mr Johnstone did not declare on his incoming passenger cards the offences he committed in New Zealand (G25 pages 104 to 107). While the Tribunal notes Mr Johnstone’s misapprehension that he was not required to do so (G10, page 34), the Tribunal considers the question on the cards are clear (“do you have any criminal conviction/s?”) and Mr Johnstone’s responses were inaccurate.
Applying the above to the principles in subparagraph 13.1.1 of Direction No, 65, the Tribunal finds that, viewed objectively, Mr Johnstone’s crimes are indeed serious and of considerable concern. In the circumstances of the matter, the crimes that Mr Johnstone committed, particularly those involving aggravated assault, aggravated burglary, those committed while driving under the influence of alcohol (on two occasions of which were without a valid driving licence) and those committed with disregard for a community order in place, weigh heavily against revocation of the mandatory cancellation of Mr Johnstone’s visa. Mr Johnstone’s conduct in continuing to drive without a licence and reoffending whilst subject to a community order reflects disregard for the law and a degree of indifference that cannot be excused.
(b) The risk to the Australian community should further offences be committed
Subparagraph 13.1.2 of Direction No. 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether Mr Johnstone represents an unacceptable risk of harm to the Australian community (i.e. the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct).
Subparagraph 13.1.2 of Direction No. 65 provides:
(1)In considering whether the non-citizen 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.
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[emphasis added]
In oral evidence before the Tribunal, Mr Johnstone said if faced with similar circumstances all over again “it [the offences] wouldn’t have happened.” Mr Johnstone said that he understands “how it [the offences] looks on paper” and “how it looks bad.” Mr Johnstone said that drinking was a problem at the time and that he will continue on with Alcoholics Anonymous, that he was not one to go out of his way to find trouble. Mr Johnstone also said that he “did deserve the [prison] time and he served it” and that he “paid the fines with hard earned cash and it hurt.” Mr Johnstone said “to have it all again, it would not occur.”
In relation to relevant issues which relate to the consideration of the risk to the Australian community, the Minister contended as follows in its SFICs dated 11 August 2017 (R3):
30. The nature of the harm to victims if the applicant were to reoffend in the future is serious, and could involve significant physical, financial, and psychological harm to members of the Australian community. As the sentencing Judge observed in relation to the aggravated burglary offence, “I think you can well understand that the person at home, when two of you come in, suffers quite a frightening experience by reason of what you and your co-offender did” (G13/59).
31. Turning to the likelihood of reoffending, the Minister notes that, whilst the applicant has expressed some remorse and has engaged in rehabilitation, the applicant’s ability to abstain from alcohol and not offend further has not been tested in the community free from obligations in the Court.
32. Furthermore, the references that suggests that the applicant’s offending behaviour was a “one off” should be given limited weight in circumstances where the applicant’s criminal history records the commission of a number of violent offences, as well as a number of offenses [sic] involving alcohol and suggests a lack of respect for the Australian law and obligations to the Court.
In considering the risk of harm to the Australian community, the Tribunal notes Mr Johnstone’s evidence in paragraph 71 above, along with the issues raised by the Minister extracted at paragraph 72 above. The Tribunal has also considered oral evidence and the letter of support from Mr Johnstone’s brother (G16, page 85) along with additional letters of support from Mr Johnstone’s friends, employer, chaplain, various certificates regarding his participation in a number of programs, his involvement with Alcoholics Anonymous and the fact that he has been offered employment and accommodation upon his release (G17 to G23, pages 86 to 102).
Having considered these matters, the Tribunal considers there is nothing in the evidence and materials before it to objectively demonstrate that if Mr Johnstone was placed in similar situations again that he would not engage in serious criminal offending once again. The Tribunal also has significant concern, notwithstanding Mr Johnstone’s expression of his remorse regarding his offences, about his inability, even at hearing, to appreciate the seriousness (and, at times, violence inherent in) his offending conduct and the consequences that flowed from this beyond the payment of fines and guilty plea “to get it over and done with.”
Based on the evidence before it, the Tribunal considers that there is a moderate risk that Mr Johnstone will reoffend if returned to the community in Australia. The Tribunal also considers that this risk would be high if Mr Johnstone were to return to abusing alcohol. Applying the guidance in subparagraph 13.1.2 of Direction No. 65, and given the nature of Mr Johnstone’s offences, his considerable role in the commission of those offences and the Tribunal’s view that, even now, he fails to appreciate the serious nature of these offences, the Tribunal finds that the risk of Mr Johnstone reoffending is unacceptable in all of the circumstances of the case. Overall, Mr Johnstone’s behaviour presents a risk of reoffending that would be too much for the Australian community to tolerate. This weighs heavily against revocation of the mandatory cancellation of Mr Johnstone’s visa.
(ii) Best interests of minor children
The second primary consideration listed in subparagraph 13(2) of Direction No. 65 asks the Tribunal to examine the best interests of any minor children in Australia affected by a decision to revoke or not revoke the mandatory cancellation of a visa.
In relation to subparagraph 13(2)(b) of Direction No. 65, subparagraph 13.2 of Direction No. 65 relevantly provides:
(1)Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
…
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
…
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
[emphasis added]
Mr Johnstone has a niece who is a minor child residing in Australia.
As to Mr Johnstone’s niece, Mr Johnstone said that “her parents look after her” and [while there are other means to communicate should he be forced to return to New Zealand] “Skype is not the same as seeing her in person.” Mr Johnstone said that “it was the same thing with his brother” in that “it was not the same as being there.”
In oral evidence, Mr Johnstone’s brother said that prior to Mr Johnstone being in prison, he had come to their home every second week to play with his daughter (Aaron’s niece), that Mr Johnstone would buy her gifts, “watch her gymnastics” and “do what a normal uncle would do.” Mr Johnstone’s brother said that his daughter (Aaron’s niece) “only has Aaron” as the rest of their family resides in New Zealand. Mr Johnstone’s brother said that he himself does not communicate with any family members in New Zealand.
In relation to the consideration of the best interests of a minor child, the Minister contends that (R3 at paragraph 35):
“Limited weight should be given to this factor in circumstances where the applicant does not have a parental relationship with the child (paragraph 13.2(4)(a)), can maintain contact with the child via other means (paragraph 13.2(4)(d)) and where her parents already fulfil a parental role (paragraph 13.2(4)(e)).
At hearing, Ms Tattersall made no further contentions in relation to the issue of the best interests of Mr Johnstone’s niece.
The Tribunal notes that if the original decision is not revoked, Mr Johnstone will be forced to leave Australia. That would not be in the best interests of Mr Johnstone’s niece to some extent, in practical terms, that she will be separated from her uncle.
The Tribunal accepts that Mr Johnstone has a close relationship with his niece, however notes that this relationship is entirely non-parental and that her parents fulfil that role.
Overall, the Tribunal finds that this factor weighs against revoking the mandatory cancellation of Mr Johnstone’s visa.
(iii) Expectations of the Australian community
In considering subparagraph 13(2)(c) of Direction No. 65 (the expectations of the Australian community), the Tribunal refers to subparagraph 13.3 of Direction No. 65 for guidance:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
[emphasis added]
In relation to the expectations of the Australian community, the Minister contended as follows in its SFICs dated 11 August 2017 (R3):
“37. Principle 5 of Direction No. 65 [see above at paragraph 30] is not relevant to the present matter as the applicant commenced prolonged residence in Australia at the age of 31. The Minister relies on Principle 2 of Direction 65 [see above at paragraph 30], confirming the expectation of the Australian community that a person who commits serious crimes should have their visa cancelled.
38. Given the nature of the applicant’s offences, the Australian community would expect that the applicant should not hold a visa.”
At hearing, Ms Tattersall made no further contentions in relation to the issue of the expectations of the Australian community and none were put orally by Mr Johnstone in this regard.
In the circumstances of the case, the Tribunal finds that the expectations of the Australian community are that a non-citizen who has engaged in a number of serious crimes, some involving violence, who has shown, in the Tribunal’s view, no true appreciation of the serious nature of the offence or provided any satisfactory evidence that it will not happen again, should expect to be denied the right to stay in Australia.
Other considerations
Paragraph 14(1) of Direction No. 65 states:
14 Other considerations – revocations requests
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
[emphasis added].
It is not in dispute, and the evidence shows, that in relation to Mr Johnstone, the only “other considerations” that are relevant are those outlined in subparagraphs 14(1)(b) and 14(1)(e) of Direction No. 65 (i.e. strength, nature and duration of ties and extent of impediments if removed).
Strength, nature and duration of ties
With respect to the “strength, nature and duration of ties” consideration, sub-paragraph 14.2 of Direction No. 65 states:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)less weight should be given where there the non-citizen began offending soon after arriving in Australia; and
(ii)More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
In relation to the strength, nature and duration of Mr Johnstone’s ties to Australia, the Minister contended as follows in its SFICs dated 11 August 2017 (R3):
“40. The Minister acknowledges that the applicant has substantial ties to Australia including his brother, sister-in-law and niece and that he has maintained employment and engaged with the community.
41. The Minister further acknowledges that the applicant’s family may face distress in being separated from him however there is no suggestion that they would be unable to travel to New Zealand or otherwise maintain contact with the applicant via alternate means.
42. The Minister accepts that this consideration weighs in favour of revocation. However, the Minister contends that it should be given limited weight and does not outweigh the primary considerations weighing heavily in favour of non-revocation.”
At hearing, Ms Tattersall made no further contentions in relation to the issue of the strength, nature and duration of Mr Johnstone’s ties to Australia and none were put orally by Mr Johnstone in this regard.
Mr Johnstone arrived in Australia on the visa the subject of the present application on 22 March 2004 (G26, page 108), at 30 years of age. The Tribunal accepts that Mr Johnstone has had the same employer for the 15 years prior to his imprisonment (G17, page 86) and that he has positively contributed to the Australian community in this way.
The Tribunal also accepts that Mr Johnstone has a close relationship with his brother, his sister in law and his niece, who have no other family in Australia.
The Tribunal considers that if Mr Johnstone is forced to leave Australia, the effect on his family will be negative, however this must be considered along with the fact that he arrived in Australia on the present visa in 2004 as an adult, already having been convicted of driving under the influence in 2002 but not committing any further offences until 2012.
The Tribunal finds that on balance, the strength, nature and duration of Mr Johnstone’s ties to Australia weigh in favour of revocation of the mandatory cancellation of Mr Johnstone’s visa.
Extent of impediments if removed
With respect to the “extent of impediments if removed” consideration, sub-paragraph 14.5 of Direction No. 65 states:
(1)The extent of any impediments that the non-citizen 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:
a) The non-citizen’s age and health;
b) Whether there are any substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
In relation to the extent of impediments if Mr Johnstone were to be removed from Australia, the Minister contended as follows in its SFICs dated 11 August 2017 (R3):
“45. The applicant is currently 43 years of age and would have no language impediments if removed. The Minister contends that the New Zealand government offers comparable social welfare to which the applicant may be entitled and that cultural and social conditions are also comparable.
46. The applicant claims that he has no family support network in New Zealand. Even if accepted that, of itself, it [sic] does not outweigh the consideration of the other factors which warrant against the exercise of the discretion.
47. Accordingly, this factor does not outweigh the considerations favouring non-revocation.”
At hearing, Ms Tattersall made no further contentions in relation to the issue of the extent of impediments to Mr Johnstone if removed from Australia and none were put orally by Mr Johnstone in this regard, other than his evidence that he does not have a close relationship with his siblings that reside in New Zealand.
Mr Johnstone is currently aged 43 years, so his age will not, in and of itself, be an impediment for him. There is no evidence to suggest Mr Johnstone would have any language or cultural barriers if removed. The Minister has contended that (at paragraphs 45 to 47 of its SFICs dated 11 August 2017, R3 extracted at paragraph 100 above) that the New Zealand Government offers comparable social welfare to which Mr Johnstone may be entitled and the Tribunal finds this to reasonably be the case.
The Tribunal notes that Mr Johnstone takes medication for his depression and anxiety, which the Tribunal considers would also be available to him in New Zealand.
The Tribunal does accept however, that Mr Johnstone would suffer emotional hardship should he be separated from his brother, sister in law and niece and then need to re-establish himself in New Zealand without them. Mr Johnstone does have some family in New Zealand, although he has chosen to distance himself from his siblings that reside there. The Tribunal notes, that prior to his imprisonment Mr Johnstone had been living independently in Australia with minimal family support and had managed to establish himself with work and in the community.
On balance of these factors, the Tribunal finds that this consideration weighs against the revocation of the mandatory cancellation of Mr Johnstone’s visa.
CONCLUSION
Having been convicted of an offence carrying with it a sentence of a term of imprisonment of 12 months or more, Mr Johnstone has a substantial criminal record and does not pass the character test in subsection 501(6) of the Migration Act. This is not in dispute.
In determining whether to exercise its discretion to revoke the mandatory cancellation of Mr Johnstone’s visa, the Tribunal has attached significant weight to the fact that Mr Johnstone committed offences which were regarded by the sentencing Judge as objectively very serious and carried with them a term of imprisonment of 34 months. The Tribunal has also attached weight to the fact that Mr Johnstone drove without a licence, under the influence of alcohol, with disregard for his licence having been suspended/cancelled, committed violent offences, breached a community order and failed to disclose to the Department his prior criminal offending (refer to subparagraph 13.1.1(f) of Direction No. 65). The Tribunal also notes the widespread public concern regarding domestic violence generally.
On the evidence before, the Tribunal finds that Mr Johnstone should, as per paragraph 6.3 of Direction No. 65, expect to be denied the privilege of staying in Australia.
The Tribunal also finds that there remains an unacceptable risk that Mr Johnstone may engage in further criminal conduct if he remains in Australia and that the Australian community will, as a consequence, be at risk. In making this assessment the Tribunal has considered the likelihood of further criminal or other serious conduct, taking into account its view that even now, and despite having completed a number of rehabilitation courses while in prison, Mr Johnstone still fails to appreciate the serious nature of his offences and his considerable role in their commission. In the circumstances, the Tribunal finds that there is an ongoing risk of reoffending, and as such, an unacceptable risk to the Australian community.
The Tribunal considers that the best interests of Mr Johnstone’s minor niece weigh against revocation, given its comments and findings at paragraphs 78 to 85 above.
The Tribunal finds that on balance, the primary considerations addressed in this decision (see paragraphs 34 to 89 above) lead to the view that the Australian community would expect that the mandatory cancellation of Mr Johnstone’s visa would not be revoked.
The Tribunal has also had regard to the countervailing “other considerations” of the strength, nature and duration of ties along with the fact that Mr Johnstone would not face any notable impediments if removed from Australia to New Zealand.
Overall, the Tribunal finds that having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No. 65, it is not satisfied that there is another reason why the original decision to cancel the visa should be revoked as required by subsection 501CA(4)(b)(ii) of the Migration Act and the correct and preferable decision is not to revoke the mandatory cancellation of the visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.
I certify that the preceding 114 (one hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member
........................................................................
Administrative Assistant - Legal
Dated: 2 October 2017
Date(s) of hearing: 21 September 2017 Applicant: In person Advocate for the Respondent: Ms E Tattersall Solicitors for the Respondent: Sparke Helmore Lawyers
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