JSFD and Minister for Immigration and Citizenship

[2009] AATA 734

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 734

ADMINISTRATIVE APPEALS TRIBUNAL                No.  2009/3317

GENERAL   ADMINISTRATIVE  DIVISION
Re		JSFD

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal: G.D. Friedman, Senior Member

Date:24 September 2009

Place:Melbourne

Decision: The Tribunal sets aside the decision under review and substitutes a decision that JSFD’s visa not be cancelled.

(sgd) Graham Friedman

Senior Member

MIGRATION – Special Category (Temporary) visa ‑ cancellation ‑ conviction for serious offences ‑ character test ‑ exercise of discretion

Migration Act 1958 ss 499(1), 499(2A), 501(2), 501(6), 501(7)

Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198

Re Glusheski and Minister for Immigration and Multicultural Affairs [2000] AATA 717

Re Kamal and Minister for Immigration and Citizenship [2009] AATA 555

Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

REASONS FOR DECISION

24 September 2009   G.D. Friedman, Senior Member

1.      JSFD is a citizen of New Zealand aged 19 years who has been in Australia permanently since 2006.  His Class TY subclass 444 Special Category (Temporary) visa was cancelled on 12 June 2009 because a delegate of the respondent was not satisfied that he passes the character test due to his criminal record in Australia.  The delegate decided to exercise the discretion to cancel the visa, and JSFD was taken into immigration detention on 16 July 2009. 

LEGISLATIVE BACKGROUND

2. Under s 501(2) of the Migration Act 1958 (the Act) the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that he or she passes the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds in s 501(6)(a)‑(d) is met. Section 501(6)(a) of the Act provides:

(a)the person has a substantial criminal record (as defined by subsection (7))…

Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

3. Under s 499(1) of the Act the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583).

4. On 3 June 2009 the Minister, exercising powers under s 499(1) of the Act, issued Direction [no.41] – Visa Refusal and Cancellation under s 501 (Direction 41) that came into operation on 15 June 2009.  Direction 41 provides guidance to decision-makers in making decisions to refuse or cancel a visa under s 501 of the Act, including the exercise of the discretion to decide whether a non‑citizen should be permitted to enter or remain in Australia in circumstances where that person does not pass the character test.

5.      Paragraph 9 of Direction 41 requires decision-makers to take into account the primary considerations in every case.  The four primary considerations are set out in paragraph 10 of Direction 41:

(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;

(b)whether the person was a minor when they began living in Australia;

(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and

(d)relevant international obligations, including but not limited to:

(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and

(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

…

6.      Paragraph 11 of Direction 41 provides that other considerations (not primary considerations) be taken into account.  These include family ties, the person’s age and health, any links to the country to which the person would be removed, hardship to the person or the immediate family lawfully resident in Australia, level of education, and whether the person has been advised previously of deportation or character provisions of the Act.  

ISSUES

7.      The issues before the Tribunal are:

·Does JSFD pass the character test? If not:

·Should the discretion to cancel the visa be exercised? This involves an assessment of the primary considerations and other considerations.

DOES JSFD PASS THE CHARACTER TEST?

8.      JSFD was born in New Zealand in 1990 and first visited Australia from 24 December 2003 until 4 January 2004.  He has lived continuously in Australia since 31 December 2006.

9.      On 12 November 2007 in the Children’s Court of Victoria he was placed on a Probation Order for 12 months on charges including theft of a motor vehicle, and reckless conduct endangering life.  On 18 February 2008 in the Children’s Court he was convicted of theft, theft of a motor vehicle and attempted theft from a motor vehicle, and was placed on a Youth Supervision Order for 12 months.  On 22 April 2008 he was remanded on a number of serious charges and on 20 June 2008 in the Children’s Court he was convicted and sentenced to a total of 12 months’ detention in a Youth Justice Centre on a number of charges including recklessly cause serious injury, armed robbery, attempted armed robbery, theft of a motor vehicle, false imprisonment and recklessly cause injury.  On 12 January 2009 in the Children’s Court he was convicted and sentenced to a total of 18 months’ detention in a Youth Justice Centre on a number of charges including armed robbery, attempted armed robbery, theft of a motor vehicle, false imprisonment and recklessly cause injury.  He was released on parole on 9 June 2009.

10.     JSFD conceded, and the Tribunal finds, that he does not pass the character test.

THE FIRST PRIMARY CONSIDERATION: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM SERIOUS CRIMINAL OR OTHER HARMFUL CONDUCT

11.     Paragraph 10.1 of Direction 41 provides that factors relevant to assessing the level of risk to the community include:

(a)       the seriousness and nature of the conduct; and

(b)       the risk that the conduct may be repeated.

Seriousness and nature of the conduct

12.     Paragraph 10.1.1(1) of Direction 41 specifies that crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community, and that crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community.  Examples of offences and conduct that the Government views as serious are set out in paragraph 10.1.1(2) of Direction 41.  They include grievous bodily harm, reckless injury, assault and aggravated assault (including abduction), robbery, ancillary offences in respect of offences and conduct that are considered serious, including convictions for attempting to commit an offence.

13.     Paragraphs 10.1.1(3) to (5) of Direction 41 require decision-makers in exercising the discretion to take into account a number of other factors, including the sentence imposed for the offences including the number and nature of the offences, the period between offences and the time that has elapsed since the most recent offence, relevant information about the person, such as judicial comments or professional psychological reports and any relevant factors the person provides as mitigating factors.

14.     According to the Summary of Charges prepared for the Court proceedings of 12 January 2009, JSFD and two co-offenders attacked and robbed several victims.  The offences involved the use of a hammer and box-cutters, and some victims suffered serious injuries which required surgery and subsequent plastic surgery.  In the Court proceedings on 20 June 2008 the charges included armed robbery, attempted armed robbery, recklessly cause injury, recklessly cause serious injury, reckless conduct endangering serious injury, theft of a motor vehicle, theft, driving offences and possession of a controlled weapon. 

15.     On 18 February 2008, while on probation, JSFD was found to have committed offences including theft and driving offences.  He was convicted on nine charges in the Children’s Court and was placed on a Youth Supervision Order for 12 months.  On 12 November 2007 JSFD was found to have committed theft and driving offences.  No conviction was recorded and he was placed on probation for 12 months.  JSFD’s criminal conduct can only be regarded as very serious.  In all, he has been convicted of 40 offences, which include multiple episodes of violence and the use of weapons.  He has been found guilty of a further 26 offences but not convicted.  This may be due to his age rather than an indication that the charges were not considered to be serious. 

16.     On the question of the period between offences and the time since the most recent offences, the Tribunal takes into account that JSFD first appeared in the Children’s Court on 12 November 2007 on charges relating to offences that probably occurred within months of his arrival in Australia, and appear to have increased in seriousness and frequency with time.  The early offences involved the theft of motor vehicles and items of clothing and other property, while more recent offences have involved unprovoked offences against the person that were committed between May 2007 and April 2008.  The consequences for the victims have included serious injury and trauma.  Many of the offences have been opportunistic and predatory.  JSFD was incarcerated in a Youth Justice Centre from April 2008 until his release on 9 June 2009.

17.     JSFD has acknowledged the seriousness of the offences.  He explained that his parents separated when he was aged about two or three years, and from the age of seven years he was raised by his grandmothers after his mother began a relationship with a man who was violent and a drug-user.  JSFD was sent to Auckland to live with a great-aunt for a time, and began associating with gang members, some of whom were part of his family.  JSFD said that his mother sent him to Australia in 2006 at the age of 16 years to escape from the exposure to violence and a negative family environment.  Initially he lived with an aunt in the eastern suburbs of Melbourne, but said that at that time he felt lost and confused, and was ill-equipped to cope in a strange city.  He stated that he found work making fly screens and security doors, and after the company ceased operation he re-located to Werribee to live with a cousin and work in an abattoir.  However he lost his job in about September 2007 after missing a day’s work through illness, and began living on the streets.  He met the young people with whom he committed the offences, and was using drugs and consuming alcohol to excess.  He admitted that in relation to the offences committed in April 2008 he was the driver, but he readily accepted his culpability.

Risk that the conduct may be repeated

18.     Paragraph 10.1(2) of Direction 41 requires the Tribunal when assessing the risk of harm to the community to consider the risk that the conduct may be repeated.  That factor is amplified by paragraph 10.1.2, which directs the Tribunal’s attention to the person’s previous general conduct and total criminal history, evidence of breach of judicial orders, and evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation.

19.     JSFD was incarcerated from April 2008 to June 2009, so there has been no opportunity to re-offend during that period.  He told the Tribunal that during his detention he faced the consequences of his actions and completed several subjects at Kangan Batman TAFE in the Certificate II course in Visual Arts and Contemporary Craft; the Certificate II course in Hospitality (Kitchen Operations); and the Certificate I course in General Education for Adults (Introductory).  He also was awarded a Certificate of Achievement for involvement in and completion of the Male Anger Discussions Program conducted by the Adolescent Forensic Health Service.  JSFD told the Tribunal that in May 2009 he was assessed as competent to drive a forklift truck.  He stated that he wishes to follow a career in carpentry or building.

20.     JSFD also stated that completion of the courses has enabled him to discover ways of living without violence.  He said that through counselling he was able to begin to make changes in his life.  He has become close to CD, a youth worker whom he met at the Youth Justice Centre, and has recently formed a relationship with CD’s daughter.  JSFD said that until his detention by immigration authorities on 16 July 2009 he was assisted by Mr D Fuentes from Brosnan Youth Services to seek employment, he attended his parole officer regularly, and participated in drug and alcohol counselling.  He said that he has stayed away from former associates and co-offenders.  He does not take drugs or drink alcohol to excess.  He has a stable relationship and strong family support.  JSFD emphasised that he is determined not to get into further trouble, and expressed remorse for his crimes.  He said that he is anxious to find employment as soon as possible, and is motivated to become a law‑abiding adult and a valuable member of the Australian community.

21.     CD told the Tribunal that she has had 25 years of experience as a youth worker dealing with young people who exhibit challenging behaviour.  She said that when she met JSFD while he was on remand at the Youth Justice Centre he was an extremely angry and damaged young person, and she worked closely with him during his incarceration.  She said that she became a second mother to him and has watched him grow up and take control of his anger and actions.  He responded well to boundaries and took advantage of sporting and educational opportunities.  CD explained that he addressed issues that shaped his past behaviour, he gained self‑respect and confidence, and matured significantly.

22.     CD said that she resigned from her position with the Department of Human Services so that she could have an ongoing supportive relationship with JSFD, and now carries out emergency work with young people through an agency.  She acknowledged the seriousness of his offending but emphasised that JSFD has taken all possible steps to avoid a repetition of past behaviour.  She said that since his release JSFD has had no contact with his former associates and has ceased drug use.  He has spent a lot of time at her home, his behaviour has been excellent and he appears to have learnt from his mistakes.  CD stated that she will continue to support him if he is permitted to remain in Australia, and she expressed a firm view that his focus is on re-building his life by seeking employment and furthering his education.  She said he now understands the importance of seeking and accepting support, and she believes that he will not re-offend.

23.     Mr Fuentes told the Tribunal in a written statement dated 27 August 2009 that Brosnan Youth Services is a voluntary program that provides holistic support for young people aged between 10 and 21 years who are involved with Youth Justice.  He said that since release on parole JSFD has made a consistent and strong effort to engage with the service, and has focused on obtaining employment.  Mr Fuentes described JSFD as respectful and considerate and has worked hard to achieve his goals, and stated that that Brosnan Youth Services remains committed to providing ongoing support on a voluntary basis.

24.     In a written report dated 14 September 2009 Mr C Mahony, team leader, Youth and Adult Northern Outreach Team, Youth Projects Inc, stated that his team provides intensive outreach support, counselling and education to people at risk of harm from drugs and alcohol use.  He said that JSFD attended four appointments before being placed in immigration detention and has responded well to the development of relapse prevention strategies.  JSFD has been keen to address drug and alcohol issues. 

25.     EF told the Tribunal that she is JSFD’s maternal aunt and that JSFD was released into her care on completion of his sentence.  She said that during the five weeks before he was taken into immigration detention his behaviour and attitude were excellent, and he was able to keep away from former associates.  She said that he was attending a gymnasium regularly with his uncle and was actively seeking employment.  EF stated that JSFD’s period in custody has taught him a valuable lesson and that she believes he will not re-offend.  She said that she would be happy to continue the arrangement of him residing at her home.

26.     GH gave evidence that he is JSFD’s maternal uncle and that he is aware of JSFD’s difficult childhood in New Zealand.  He said that he established close contact with JSFD since JSFD’s release from the Youth Justice Centre and that JSFD has been an enthusiastic participant in gymnasium and martial arts activities.  GH stated that JSFD has a positive attitude and a willingness to accept assistance and support from family and friends.       

27.     In a written report dated 14 September 2009 the Youth Parole Board, Victoria, stated that reports of his time in youth juvenile custody appear to be positive and that in his five weeks of parole prior to entering immigration detention, JSFD attended all scheduled weekly appointments with Youth Justice and other support services.  

28.     In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81 Davies J held that even if the risk of recidivism is not high, it will strongly support deportation (or visa cancellation) when recidivism, if it does occur, may cause great harm.  In Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198 the Full Court of the Federal Court held that a real risk of recidivism is one that is not far fetched or fanciful, and can include a low or minimal risk. In Re Glusheski and Minister for Immigration and Multicultural Affairs [2000] AATA 717 the Tribunal stated at [28]:

If the decision under review is set aside, the applicant will continue to serve his additional term until such time as he is released on parole or until such time as that additional term expires. If he is released on parole, it will no doubt be on conditions of reporting and under conditions of supervision by a parole officer. It seems to me that if he is to be “reintegrated into society” through the good offices of his brother, he will be assisted as well by the supervision of a parole officer. If the community of New South Wales can rely on such supervision then, in my view, the Minister is entitled to be equally reliant.

29.     In considering the likelihood of recidivism the Tribunal takes into account that JSFD committed the bulk of the serious offences in an 11-month period that involved escalating seriousness and violence, including opportunistic behaviour.  He committed serious offences while the subject of a Probation Order and a Youth Supervision Order.  On the other hand he has participated in a number of training programs during his detention and appears to be genuine in his expressions of remorse and in learning from his past mistakes.  JSFD was a juvenile when the offences were committed.

30.     Overall, JSFD’s offences are serious and were committed over a relatively short period.  Taking into account the first primary consideration of whether the Australian community will be protected from serious criminal or other harmful conduct, particularly crimes involving violence, the Tribunal finds that he has shown remorse, has significant family and community support and has attended all appointments since his release on parole in June 2009.  He has acknowledged his offences and the impact on victims and has taken steps to prevent a relapse.  Representatives of support services and family members speak highly of his motivation to continue his rehabilitation and his determination to find meaningful employment.  He has ceased associating with his co-offenders.

31.     During and since the period of incarceration JSFD has demonstrated signs of greater maturity and an understanding of the consequences of his actions.  The Tribunal gives particular weight to the evidence from CD, an experienced youth worker who has developed a close personal relationship with JSFD and has been influential in supporting his efforts to develop his potential to become a valued member of the community.  There is a substantial period of parole, which is a further incentive for him to keep out of trouble.  On balance, and with the continuing support of those close to him, the Tribunal finds that the risk that he will re-offend is low.  This primary consideration weighs against cancellation of the visa.

SECOND PRIMARY CONSIDERATION: WHETHER JSFD WAS A MINOR WHEN HE BEGAN LIVING IN AUSTRALIA

32.     Paragraph 10.2 of Direction 41 provides that favourable consideration should be given if the person was a minor when he or she first began living in Australia and if he or she spent formative years in Australia.  Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.

33.     JSFD was a minor when he began living in Australia, although he did not spend most of his formative years here, having lived in New Zealand until the age of 16.  He is now aged 19.  His sentence for criminal matters was served in a youth facility and the serious offences occurred when he was aged 17 and 18.  In all the circumstances this primary consideration weighs against cancellation of the visa. 

THIRD PRIMARY CONSIDERATION: THE LENGTH OF TIME THAT JSFD WAS ORDINARILY RESIDENT IN AUSTRALIA PRIOR TO ENGAGING IN CRIMINAL ACTIVITY

34.     Paragraph 10.3 of Direction 41 provides that consideration be given to the length of time that a person has been ordinarily resident in Australia.  More favourable consideration to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that reflects negatively on the person’s character.

35.     JSFD has lived in Australia for less than three years, of which more than 12 months have been spent in a Youth Justice Centre.  He was ordinarily resident in Australia for only several months before committing offences.  Other offences occurred within a relatively short period.  The Tribunal finds that this primary consideration weighs in favour of cancellation of the visa.

FOURTH PRIMARY CONSIDERATION: RELEVANT INTERNATIONAL OBLIGATIONS

36.     The Convention of the Rights of the Child provides that, in all actions involving children, the best interest of a child is a primary consideration.  JSFD was aged over 18 years at the date of the decision to cancel his visa and is now aged 19 years, so the Convention does not apply.  There are no other children who are affected by international obligations, and the Tribunal finds that this primary consideration is of no practical application to its decision.    

OTHER (NOT PRIMARY) CONSIDERATIONS

Family ties, the nature and extent of any relationships

37.     JSFD told the Tribunal that he now has strong ties to his maternal aunts and his uncle in Melbourne, and that they have been supportive of him.  He said that he would continue to reside with EF and her partner if permitted to remain in Australia.

38.     In a written statement JSFD’s mother said that her siblings and a cousin in Australia have been a good influence on JSFD, and that he has been a changed person as a result of his incarceration.  She said that he now has genuine goals, aspirations and dreams for a better life in Australia.

39.     In a written statement IJ said that she is JSFD’s maternal aunt and that with the family support in Melbourne JSFD’s interests would be best served by him remaining in Australia.  She said that he has learnt a valuable lesson while in custody.

40.     In a written statement dated 13 February 2009, KL told the Tribunal that she is a student and met JSFD through CD after his release from the Youth Justice Centre, and she was aware of his background and his offences.  KL stated that she and JSFD became close and they have commenced a relationship.  She described him as intelligent, respectful and focused on building a future as a law-abiding member of the community who has been happy to spend time with her and her mother.  She said that he has matured a great deal since his offending.  KL confirmed that he has ceased using drugs, and said that he has made great changes to his life over the last few years.  She stated that she hopes to remain closely involved in his life, even if their relationship does not continue in the long term.          

41.     The Tribunal takes into account that JSFD has a number of aunts, an uncle and a cousin living in Australia, plus close personal relationships with CD and KL.   JSFD has commenced a relationship with an Australian citizen, although the relationship is recent and is not necessarily a committed one at this stage.   Cancellation of JSFD’s visa would cause disruption to the relationships that he has established in Australia.  However, given the brief nature of the relationship with KL, and the relatively recent relationship with CD and the recent re-connection with extended family members, the Tribunal concludes that this consideration does not weigh in favour of or against cancellation of the visa.

Age

42.     JSFD is aged 19.  He had been living with his aunt for a brief period before being placed in immigration detention, but a decision to cancel his visa would be likely to have a negative impact on her as she strongly support his application.

Health

43.     JSFD said that he is in good health.  There is no evidence before the Tribunal of any condition suffered by JSFD, so this consideration is not relevant to the Tribunal’s decision.

Links to the country to which he would be removed

44.     JSFD told the Tribunal that he considers Australia to be his home, although his mother, father and extended family live in New Zealand.  He has had no contact with his father for many years.  JSFD’s mother supports his desire to remain in Australia, and in her written statement she referred to gang cultures in New Zealand, family members with criminal associations, and the absence of a positive male role model.  She stated that a return to New Zealand would be detrimental to his well-being and his desire to live a meaningful life.

45.     The Tribunal takes into account the concerns expressed by JSFD and his mother about the environment of gang activities and criminal association by some family members in New Zealand, although there was a lack of objective evidence about the likely influence of the gangs on JSFD if he was to return to his country of birth.  JSFD has not lived with his mother for most of his life, and she would not be in a position to offer practical support.  He has not lived in New Zealand for three years and has not maintained close contact with family members who live there.  Members of his extended family might be able to assist, and there is a possibility that JSFD could seek to live and work in other parts of New Zealand.  However, in all the circumstances the Tribunal concludes that JSFD no longer has strong links to New Zealand.  This consideration weighs against cancellation of the visa.    

Hardship likely to be experienced by JSFD or his immediate family members lawfully resident in Australia

46.     JSFD has no immediate family members lawfully resident in Australia.  He emphasised that his prospects of rehabilitation and personal development would be affected adversely if he is required to return to the environment that he left in 2006.  He stated that he moved from New Zealand to escape the gang culture with which he had been involved, and he fears for his and his family’s safety if he is forced to return to that country.  He said that there is little in New Zealand for him by way of support services in the locations where he lived as a child and an adolescent.

47.     CD and KL told the Tribunal that their family and their careers are in Australia and that they would not be in a position to accompany AB to live in New Zealand.  Both told the Tribunal that they believe JSFD would suffer severe hardship if he is removed from the network of family and friends that he has established in Melbourne at this critical stage of his rehabilitation.  Other family members who gave evidence supported the view that a return to New Zealand would be detrimental to JSFD’s welfare.

48.     JSFD is now an adult and could choose not to associate with those who might be a negative influence on him.  If he has concerns about certain family members and gang activities, he would be free to live in a part of New Zealand that is located away from the persons and places that caused difficulties for him as a child and an adolescent.  He would be able to seek access to relevant government agencies and support services.  However, although his mother, brother, sister, grandmother and cousins live in New Zealand and may be able to assist him in some way, the extent of that support appears to be limited, and government and private agencies might not be as willing to help as those in Australia because the crimes were not committed in New Zealand.  He would not have the valuable and continuing support from CD and KL and his Australian-based relatives.  On balance the Tribunal concludes that JSFD would suffer hardship if he is forced to move to New Zealand at a time when he has shown a willingness and motivation to become a productive member of the community.  This consideration weighs against cancellation of the visa. 

Level of education

49.     JSFD told the Tribunal that he was home schooled for the first year of secondary education in New Zealand and commenced a building course at a TAFE College, where he completed Level 2 Building and Elementary Construction.  The Tribunal is satisfied that any lack of formal education has not impacted adversely on his ability to present his claim in the application for review or to give instructions to his legal representatives.  The Tribunal acknowledges that he completed several courses while incarcerated in the Youth Justice Centre, and that he has made an effort to improve his education and to increase his capacity to contribute to the Australian community through employment or other activities.  This consideration weighs against cancellation of the visa.

Whether JSFD has been formally advised in the past by the Department about conduct that brought him within the deportation provisions of the Act or the character provisions of the Act

50.     JSFD was not formally advised by the Department of Immigration and Citizenship, prior to the commission of his offences, about conduct that has resulted in the application of the character or deportation provisions of the Act.  Therefore the lack of a warning weighs against cancellation of the visa. 

SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?

51.     The primary consideration of the protection of the Australian community weighs against cancellation of the visa in view of the Tribunal‘s conclusion that there is a low risk of re-offending if JSFD continues to accept family and community support.  The second primary consideration weighs against cancellation because JSFD was a minor when he began living in Australia, although he did not spend his formative years in Australia.  The third primary consideration weighs in favour of cancellation because JSFD was resident in Australia for a relatively brief period prior to engaging in criminal activity, although in Re Kamal and Minister for Immigration and Citizenship [2009] AATA 555 the Tribunal concluded that the fact that the applicant had arrived in Australia as a minor should be afforded greater weight than the length of time spent in Australia before the commencement of offending. The fourth primary consideration is not applicable because there are no relevant international obligations, including the best interests of a child. Overall the primary considerations weigh against cancellation of JSFD’s visa.

52.     Of the other (secondary) considerations the efforts made by JSFD to complete several courses while incarcerated, together with the support by CD and KL and members of his extended family in Australia, weigh against cancellation of the visa.  Other factors (including his links to New Zealand) weigh against cancellation or are of little relevance. 

53.     After considering all the circumstances of the primary considerations and then the other considerations (which must be given lesser weight than the primary considerations), the Tribunal concludes, for the reasons given, that the factors weighing against cancellation of the visa outweigh the factors in favour of cancellation, and the discretion to cancel the visa should not be exercised.

DECISION

54.     The Tribunal sets aside the decision under review and substitutes a decision that JSFD’s visa not be cancelled.

I certify that the fifty-four [54] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd) Olympia Sarrinikolaou

Clerk

Date of hearing:  21 September 2009
Date of decision:  24 September 2009
Counsel for the applicant:            Mr G Hughan
Solicitor for the applicant:           Victoria Legal Aid
Advocate for the respondent:       Ms K Miller
Solicitor for the respondent:        Australian Government Solicitor