Kennedy and Minister for Home Affairs (Migration)

Kennedy and Minister for Home Affairs (Migration) [2019] AATA 3770 (24 September 2019)
Division:GENERAL DIVISION
File Numbers: 2019/4037
Re:Ata-Tipene Kennedy
APPLICANT

AndMinister for Home Affairs
RESPONDENT

Decision
Tribunal:The Hon. Matthew Groom, Senior Member

Date:24 September 2019
Place:Melbourne

The Tribunal affirms the decision under review.
[sgd]........................................................................
The Hon. Matthew Groom, Senior Member
Catchwords
MIGRATION – mandatory cancellation – Direction 79 – New Zealand Citizen – violent offending – armed robbery – robbery - dangerous driving while pursued by police – using threatening words in a public place – decision affirmed
Legislation
Migration Act 1958
Cases
Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
Secondary Materials
Direction No. 79 - Migration Act 1958 - Direction under section 499
Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
24 September 2019
INTRODUCTION

This is an expedited review of a decision made by a delegate of the Minister for Home Affairs (the “respondent”) under section 501CA(4) of the Migration Act 1958 (the “Act”) not to revoke a mandatory cancellation of the applicant’s Class TY, Subclass 444 Special Category (Temporary) visa (the “visa”).
The hearing in this matter was conducted on 12 September 2019. The applicant was self-represented and the respondent was represented by Mr Christopher Orchard of Sparke Helmore Lawyers.
BACKGROUND
The applicant is a 26-year-old national of New Zealand who first arrived in Australia on 16 July 2002, at the age of nine.
Since moving to Australia the applicant has only been out of Australia twice, both for short-term visits back to New Zealand.
In 2015 the applicant was convicted of a number of criminal offences in the Melbourne County Court and the Sunshine Magistrates’ Court. The offences included armed robbery (multiple offences), robbery (multiple offences), dangerous driving while pursued by police and using threatening words in a public place. A full record of the applicant’s criminal offending is set out in the National Police Certificate (the “police certificate”) annexed to these reasons.[1]
[1] See Annexure 1.
In respect of his convictions in the County Court, the applicant was sentenced to a total of 5½ years imprisonment with a non-parole period of 3½ years. In his evidence to the Tribunal the applicant accepted the offences and sentence as set out in the police certificate. The Tribunal accepts the police certificate is an accurate record of the applicant’s offending and sentencing outcomes.
On 9 June 2017 the Department of Home Affairs (the “department’) issued the applicant with a notice that his visa had been mandatorily cancelled under section 501(3A) of the Act as a consequence of his criminal convictions. On 15 June 2017 the applicant sought revocation of the cancellation.
On 4 July 2017 the applicant provided the department with a Personal Circumstances form which included submissions and additional material in support of his application for a revocation of the mandatory cancellation.
On 25 June 2019 a delegate of the respondent decided, under section 501CA(4) of the Act, not to revoke the mandatory cancellation of the applicant’s visa.
On 8 July 2019 the applicant applied to the Tribunal for a review of the delegate’s decision; which is the subject of the application currently before the Tribunal.
ISSUE
There was no issue between the parties that the applicant had made representations within the 28 days of being notified of his visa cancellation. Nor was there any dispute between the parties that the applicant does not pass the character test under section 501(6)(a) of the Act on account of him having a substantial criminal record. The Tribunal is satisfied on both of these points.
Therefore, the issue before the Tribunal is whether there is “another reason” to revoke the mandatory cancellation of the applicant’s visa having regard to the specific circumstances of the case, and applying the relevant considerations in accordance with Direction No. 79, made under section 499 of the Act on 20 December 2018 (the “Direction”).
The respondent contends that in all the circumstances of the case, and in applying the Direction, the correct or preferable decision is to refuse to revoke the cancellation of the applicant’s visa.
The applicant contends that, in all the circumstances of the case, the discretion available to the Tribunal should be exercised in favour of a revocation of the mandatory cancellation of his visa.
CONTENTIONS AND CONSIDERATION
The Preamble to the Direction specifies a number of principles at paragraph 6.3, which provide a framework within which decision-makers should approach their specific task. Those principles include that:
(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 women or children or vulnerable members of the community such as 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.
In deciding whether to revoke the mandatory cancellation of the applicant’s visa, paragraph 13(2) of the Direction provides that the following are primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
The Direction provides that primary considerations should generally be given greater weight than the other considerations and that one or more primary considerations may outweigh other primary considerations. However, it is now well-established that the Tribunal, in exercising its discretion, can give equal or greater weight to any consideration.[2]
Primary Considerations
[2] Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303.
The protection of the Australian community from criminal or other serious conduct
Paragraph 13.1(1) of the Direction states that:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. 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.
Paragraph 13.1(2) of the Direction provides that 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.
Having considered all the evidence before it, the Tribunal is satisfied that the applicant’s offending must be viewed as very serious. The applicant himself acknowledged his offending as being “serious”. In reaching this conclusion, the Tribunal notes the following:
(a)Under the Direction violent crimes are to be viewed very seriously.[3]
(b)The applicant’s offences of armed robbery are, by their very nature, violent crimes.
(c)The Tribunal has carefully considered the description of the applicant’s offending; which was put to the applicant in cross-examination and which was not disputed in any material respect by the applicant. Under cross-examination the applicant conceded that during his first robbery offence he had punched his victim and kicked him to the head in an unprovoked attack. The applicant also conceded that in one of his armed robbery offences he had threatened to kill his victim, and again punched the victim in an unprovoked attack. The applicant also conceded that, in respect of his offence of using threatening words in a public place, the applicant said to his sister words to the effect of “what country do you think you are in to go through my bag? Stay out of my bag or I will kill you”. When asked why he had threatened his sister the applicant told the police it was a joke. The applicant stood by that explanation in his evidence to the Tribunal. The applicant conceded that following the incident with his sister he had gone on to tell his stepfather, who had informed the applicant he had called police, that “you are just a pussy white cunt, I will smash you, I will fucking kill you”.
(d)The Tribunal also notes that, in her sentencing remarks, Judge Douglas described the applicant’s robbery offences as having involved “gratuitous violence”.[4] Judge Douglas also described the applicant’s victims as having been “soft targets” who were going about their business “quietly”; and who had not provoked the violent conduct of the applicant in any way.[5]
(e)In relation to one of the armed robbery offences, Judge Douglas had regard to the victim’s evidence that the force inflicted by the applicant on the victim had occurred in a “frenzied, fast blur”, and that the applicant used “far more force than was necessary to affect the theft”.[6]
(f)Judge Douglas also described the applicant as having “preyed” on his victims, who were “vulnerable people”, and who feared that the applicant would use force on them.[7]
(g)With respect to the applicant’s dangerous driving offences, Judge Douglas described the applicant’s driving as “appalling, risk-taking behaviour” that had “risked the safety of other road users”.[8] The Tribunal notes, however, that Judge Douglas did describe the driving offence as being at a lower end of seriousness than that required to meet the offence of “dangerous driving”.[9]
(h)The Tribunal also notes that the applicant received a very lengthy term of imprisonment for his offending, namely 5 ½ years.[10] The lengthy sentence was imposed despite the fact that the applicant was before the Court as a first-time offender. The Tribunal is satisfied that the length of the sentence reflects the high level of seriousness of the offending in the view of Judge Douglas.[11]
[3] See Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction [79] — Visa Refusal and Cancellation under s501, 20 December 2018, paragraph 6.3(2)–(4).
[4] Director of Public Prosecutions v Ata-Tiapene Kennedy [2015] VCC 356, 2 [16].
[5] Ibid [15].
[6] Ibid 3 [19].
[7] Ibid 2 [15].
[8] Ibid 3–4 [22].
[9] Ibid 4 [23].
[10] Ibid 11 [59]
[11] Ibid 9 [52].
The Tribunal now turns to the assessment of the risk of the applicant re-offending. In undertaking its assessment, the Tribunal notes that, in accordance with the Direction, the decision-maker must have regard, cumulatively, to:
(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.
The applicant told the Tribunal that he believes his risk of re-offending is “zero”. He made a number of points to the Tribunal in support of this conclusion which can be summarised as follows:
(a)he noted that he believes his offending behaviour was out of character and was triggered by stresses in his life at the time, including the break-up of a relationship and the separation of his parents, and that he has now worked through these issues;
(b)he told the Tribunal he is now more mature and better able to manage his emotions, and that should similar stresses re-emerge in his life he is now better placed to deal with them without resorting to offending behaviour;
(c)he expressed significant remorse for his offending;
(d)he told the Tribunal that prior to the spate of offences that lead to his 2015 convictions he had not previously offended;
(e)he told the Tribunal he has undertaken a number of rehabilitation courses including the Moderate Intensity Violence Intervention Program and the Talking Change Program, as well as a drug and alcohol awareness program; and that the courses he has undertaken have assisted him in gaining insight into his offending; and
(f)while the applicant disputed the respondent’s contention that drug abuse was a substantive cause of his offending, he told the Tribunal that he has not used drugs or alcohol while in prison and would not resort to abusing either on his release. In his evidence he told the Tribunal that he had abused alcohol since he was around 14 years of age, and considered himself an alcoholic. He told the Tribunal that during the period leading up to his offending he had used drugs irregularly, including marijuana and “ice” (methyl amphetamine).
There were a number of family members as well as a personal friend of the applicant, who provided written references in support and gave evidence in support of the applicant at the hearing. This evidence included a number of statements to the effect that the applicant was a decent and caring person who consistently demonstrated love and support for his family as well as his friends, but who had lost his way as a consequence of stresses in his life and his subsequent use of drugs. This evidence also suggested that the applicant was very remorseful for his offending and had matured; and would be well supported on his release from prison by his family and friends.
Mr Orchard contended that there remains a real and ongoing risk of the applicant re-offending, and in doing so, causing serious physical and psychological harm to members of the Australian community. Mr Orchard made a number of points to the Tribunal in support of this contention, which can be summarised as follows:
(a)the nature of the applicant’s offending was very serious, and if repeated it had the potential to cause very serious harm to the community;
(b)the risk of harm to the Australian community if the applicant were to re-offend is so serious that it is unacceptable;
(c)the applicant was a serious drug and alcohol user at the time of his offending, and his drug abuse in particular was the substantive cause of his violent offending;
(d)the applicant is likely to face very serious challenges in avoiding a relapse into drug and alcohol abuse, and there remains a real risk he will relapse;
(e)there remains a risk that the applicant would again be exposed to the social group the applicant associated with while abusing drugs and alcohol;
(f)by describing his risk of re-offending as ‘zero’, the applicant had demonstrated a serious lack of insight into the causes of his offending;
(g)the applicant’s evidence that his drug abuse in particular had not been the substantive cause of his offending also demonstrated a serious lack of insight into the causes of his offending;
(h)while the applicant has refrained from alcohol and drug use during his time in prison, his abstinence from alcohol and drugs has not yet been tested in the community;
(i)to the extent that the applicant’s drug and alcohol abuse resulted from personal stresses, the applicant is likely to experience similar stresses again in the future;
(j)given the level of family support that the applicant had available to him at the time of his offending, the fact that such support will be available to him on his release does not significantly mitigate the applicant’s risk of re-offending; and
(k)if the applicant were to relapse back into drug and alcohol abuse and re-offend it is likely that the types of offending he has previously committed would be repeated.
Having carefully considered all the evidence before it, the Tribunal is satisfied that the risk of the applicant re-offending in a manner similar to his previous offending is not minimal or trivial, but rather real and significant. In reaching this conclusion the Tribunal is satisfied as to the following:
(a)the applicant’s offending was out of character when considered against the backdrop of his broader life including the period prior to him engaging in drug and alcohol abuse.
(b)At the time of his offending the applicant had a significant drug and alcohol problem. A number of the applicant’s supporting witnesses, including family members, acknowledged that the applicant had a significant issue with drugs. One family member described the applicant at the time of his offending as having been on a “rampage” as a consequence of drugs. The applicant himself told forensic psychologist, Mr David Ball, that he was using approximately seven grams of marijuana and half a gram of ice a day leading up to his offending. In his evidence to the Tribunal, the applicant denied this was accurate and told the Tribunal that he had been drug affected when answering the questions of the psychologist. The Tribunal rejects the applicant’s evidence in this regard and is satisfied the applicant lacked candour in answering the questions put to him during cross-examination in relation to his drug use. The Tribunal is satisfied that the answers the applicant gave to Mr Ball in relation to his drug use at the time of his offending are reflective of the truth of his use at that time.
(c)The applicant’s drug abuse, in particular, was the substantive cause of his offending. During the course of his evidence, while acknowledging that he had a drug and alcohol problem at the time of his offending, the applicant sought to downplay the role his drug use in particular had played as the substantive cause of his offending. The applicant told the Tribunal that he considered the substantive cause to have been the emotional stress he had experienced as a consequence of the personal relationship breakdown and the separation of his parents. He admitted being an alcoholic but appeared to downplay his drug use significantly. While acknowledging the very difficult personal circumstances the applicant was dealing with during the period leading up to his offending, there is no doubt in the mind of the Tribunal that the applicant’s drug use at the time was the most significant contributing factor in the violent nature of his offending. In reaching this view, the Tribunal notes the evidence provided by a number of family members who clearly linked his drug use with his offending. In addition, in her sentencing remarks, Judge Douglas described the applicant’s offending as having been caused by the applicant’s reliance on drugs and that “your rehabilitation depends on you being able to no longer rely on alcohol or drugs to do with your problems in life”.[12]
(d)If the applicant were to relapse back into drug and alcohol abuse there is a serious risk that he would offend again, in a similar manner to his previous offences.
(e)The applicant is likely to face very serious challenges in avoiding a relapse into drugs and alcohol following his release from prison; particularly in circumstances where his capacity to maintain his abstinence has not yet been tested in the community and he is likely to once again face the kind of emotional stresses that led to his alcohol and drug abuse in the first place.
(f)The lack of full candour by the applicant in response to questioning in relation to his drug use is indicative of a lack of genuine insight into his offending and into the serious challenges that he will confront in seeking to avoid a relapse back into drug and alcohol abuse and re-offending following his release from prison.
(g)Notwithstanding the offers of love and support from family and friends, which the Tribunal accepts are very genuine, and given the existence of those supports at the time of his offending the Tribunal is not satisfied that they mitigate the risk of the applicant re-offending in a sufficiently material way to render his risk of re-offending as being minimal or trivial.
(h)While the Tribunal accepts that the applicant is remorseful for his offending, that remorse is somewhat tempered by the evidence of a lack of genuine insight into his offending, as described above.
(i)While the Tribunal acknowledges that the applicant has undertaken rehabilitation courses to better understand the nature of his offending and his issues with drugs and alcohol, the Tribunal is not satisfied that having undertaken those courses is sufficient to reduce the risk of him relapsing into drug and alcohol abuse or re-offending to a material degree. The Tribunal also acknowledges that during his time in prison the applicant has had an opportunity to reflect on his offending and that he has likely matured to some degree during that period. The Tribunal further acknowledges that the Applicant has undertaken a number of vocational-based courses. The Tribunal also acknowledges the role the applicant has played in mentoring younger inmates and providing support for older inmates. Notwithstanding this, the Tribunal is satisfied that the applicant continues to lack genuine insight into his offending and that therefore his risk of re-offending cannot be described as minimal or trivial.
(j)The Tribunal acknowledges that the applicant has expressed a determination not to re-offend because he would have “too much to lose in life” and because he wants to support his family and “give back” to the community. However, given the conclusions the Tribunal has reached in respect of the role drug and alcohol abuse has played in his offending and the applicant’s continuing vulnerability to relapse, the applicant’s stated determination not to re-offend does not, in the mind of the Tribunal, reduce the risk of him re-offending to a level that could be described as minimal or trivial.
[12] Ibid 8-9, [48]

For these reasons, the Tribunal is satisfied that the level of risk of the applicant relapsing into drug and alcohol abuse and re-offending is real and significant. Further, the Tribunal is satisfied that if the applicant is to re-offend, it is likely that the types of offending behaviours the applicant has engaged in the past would be repeated. The Tribunal accepts that such conduct has the potential to cause very significant harm to the Australian community. The Tribunal considers this risk of future harm to the Australian community to be unacceptable.
Accordingly, the Tribunal finds that the protection of the Australian community consideration weighs very heavily in favour of not revoking the mandatory cancellation of the applicant’s visa.
The best interests of minor children in Australia[13]
[13] All references to minors have been abbreviated to avoid full disclosure of their identities.
There was evidence before the Tribunal that the applicant has a close relationship with his minor sister TWK, who is approximately 16 years of age. The applicant described being very close to his younger sister, stating that she has “looked up” to him her whole life. The applicant noted that his sister has relied on him heavily for emotional support following the separation of their parents. He stated that a decision forcing him to return to New Zealand to live would prevent him from providing his sister with the love and support she needs, particularly with their mother facing health challenges and their father currently serving time in prison. The applicant stated that his younger sister would be emotionally and physically distressed as a consequence of such a decision. The applicant stated that his sister has continued to visit him regularly in prison. The nature of the applicant’s strong relationship with this sister was reinforced through statements provided by the applicant’s other sister, Ms Hinerangi Kemp, as well as by his mother.
In addition, through the course of his oral evidence, the applicant identified a number of other minor children resident in Australia whom he claims would be adversely impacted by a decision not to revoke the mandatory cancellation of his visa. Those children are as follows:
(a)KT, who is the stepson of the applicant’s cousin, Mr Eljon Smith, and approximately 15 years of age. Mr Smith gave evidence that the applicant had maintained regular contact with KT prior to his incarceration and had played a positive role in his life. Mr Smith told the Tribunal that the applicant had not seen KT during his time in prison.
(b)AK, who is the daughter of the applicant’s sister, Ms Hinerangi Kemp, and approximately 2½ years of age. Ms Kemp gave evidence that the applicant has met AK on a number of occasions while in prison. The applicant stated that he hoped to play a positive role in AK’s life following his release from prison.
(c)An unborn child of the applicant sister, Ms Hinerangi Kemp, who is due to be born in the coming weeks. Again, the applicant stated that he hoped to play a positive role in the child’s life following his release from prison.
(d)MN, who is the son of the applicant’s “aunty”, Ms Angela Cooper, and approximately 12 years of age. Ms Cooper gave evidence of the applicant having had regular contact with MN prior to his imprisonment.
(e)RN, who is another son of Ms Cooper and approximately 10 years of age. Again, Ms Cooper gave evidence of the applicant having had regular contact with RN prior to his imprisonment. She noted that the applicant had performed a positive role in the lives of her children that might be likened to that of a “big brother”. Ms Cooper acknowledged that the applicant has had no contact with either MN or RN during the period the applicant had been in prison.
(f)KS, who is Mr Smith’s son and approximately 13 years of age. The applicant gave evidence that he had maintained regular contact with KS prior to being incarcerated, although he acknowledged that he had not had contact with KS during the time he has been in prison.
(g)JS, who is Mr Smith’s other son and approximately 10 years of age. Again, the applicant gave evidence that he had maintained regular contact with JS prior to being incarcerated but also acknowledged that he had not had contact with JS during the time he has been in prison.
(h)DF, who is the son of the applicant’s friend, Ms Wendy Isaako, and approximately 11 years of age. The applicant gave evidence that he has met with DF on approximately two occasions in the last four to five years.
(i)IU, who is the daughter of Ms Isaako and approximately 2½ years of age. The applicant gave evidence that he had met with IU on one occasion in the last five years.
(j)TU, who is another son of Ms Isaako and approximately one year old. The applicant gave evidence that he had not yet met TU.
The applicant gave evidence with respect to each of the minor children identified above and in each case indicated that he had a genuine love and affection for them, had sought to play a positive role in their lives, and was committed to continuing to do so upon his release from prison. The applicant described the children as being family to him and told the Tribunal that family was the most important thing to him. The applicant’s evidence was that he has a particularly strong relationship with his younger sister.
The applicant expressed some embarrassment to the Tribunal at not being able to spell the names of each of the children with confidence nor identify their ages with precision. The applicant indicated to the Tribunal that while he had not had contact with most of the children during his time in prison, that was as a consequence of his embarrassment at his present predicament and his wish for them to not see him in a prison setting. He also told the Tribunal that his inability to be able to spell each of the names or cite their ages with confidence should not be viewed as evidence that he did not have a strong and genuine affection toward them or a commitment to play a positive role in their lives in the future.
Having considered all of the evidence, including hearing from the applicant and other family members and his friend Ms Isaako, the Tribunal is satisfied that the applicant feels a genuine connection towards each of the minor Australian children identified above. The Tribunal accepts that the applicant has a particularly strong relationship with his younger sister but that he also maintains a genuine affection for the other children and a genuine commitment to playing a positive role in their lives following his release from prison. The Tribunal is satisfied that it would be in the best interests of each of the children for the mandatory cancellation of the applicant’s visa to be revoked.
Notwithstanding this, the Tribunal accepts the contention put by the respondent that in acknowledging that the best interests of the children would be served by a revocation of the mandatory cancellation of the visa, this conclusion is given less weight with respect to each of the children other than his younger sister. This is as a consequence of the limited or complete absence of any contact he has had with each of those children during his time in prison, as well as the fact that there is no evidence that he is likely to take on a parental-type responsibility with respect to those children on his release from prison. In addition, with respect to his younger sister, the conclusion is given less weight as a consequence of the fact that the applicant will not be released from prison until, on the evidence before the Tribunal, January 2020, and that there will only be a relatively short period following his release from prison before his sister reaches the age of majority.
When asked whether there were any further minor children resident in Australia who might be impacted by the Tribunal’s decision other than those identified above, the applicant said “no”. Despite this, there was evidence in the written materials before the Tribunal of another half-sister to the applicant (namely his father’s daughter to another partner) who, based on the evidence before the Tribunal, is approximately one year old. There was no evidence of any relationship between the applicant and this half-sister; nor any suggestion that the applicant was likely to play a role in her life in the future. The Tribunal notes that the applicant’s half-sister has Down syndrome. Notwithstanding these circumstances, given that there must remain a potential for a future relationship between the applicant and his half-sister, the Tribunal finds that it would be in the best interests of the applicant’s half-sister for the mandatory cancellation of the applicant’s visa to be revoked. Although, this conclusion is again given less weight by virtue of the absence of any evidence of a current relationship between them and no suggestion of a future parenting-type role.
Having regard to all of these circumstances, on balance, the Tribunal is satisfied that the best interests of the children consideration weighs in favour of the revocation of the mandatory cancellation of the applicant’s visa.
Expectations of the Australian community
Paragraph 13.3 (1) of the Direction provides that:
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.
The Tribunal acknowledges that there has been some divergence in the case law regarding how this consideration should be applied. The consideration was discussed in YNQY v Minister for Immigration and Border Protection,[14] where Mortimer J said:
76. In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[14] [2017] FCA 1466.
More recently there have been two Federal Court cases that have given further consideration to this issue. In FYBR v Minister for Home Affairs[15] Perry J has endorsed the approach adopted by Mortimer J in YNQY. In the case of DKXY v Minister for Home Affairs[16] Griffiths J appears to have rejected the YNQY approach, or at the very least, qualified it in an important respect. In DKXY Griffith J stated that:
30. In my respectful view, her Honour’s reasoning in [76] and [77] of YNQY would be plainly incorrect if this reasoning is read as stating that the primary consideration of expectations of the Australian community will always weigh against revocation. The Minister contended that the reasoning simply reflected the facts in YNQY and did not purport to be a construction of Direction 65 as suggesting that the expectations of the Australian community can never weigh in favour of an applicant …
31. As the applicant here pointed out, there are numerous statements in Direction No 65 which require the primary consideration of expectations of the Australian community to be assessed in the light of all the relevant circumstances which appertain to it and it has to be weighed against all other relevant considerations (while noting that the Direction requires that primary considerations be given more weight than other considerations). In an appropriate case, and depending upon all relevant circumstances, the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government’s view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction, including those which are referred to in [23] above.
[15] [2019] FCA 500
[16] [2019] FCA 495.
His Honour went onto discuss the case of Uelese v Minister for Immigration and Border Protection[17] which had been cited by Mortimer J in support of the proposition that the expectations of the Australian community consideration will invariably weigh against an applicant. Griffiths J stated that:
33. … There is nothing in these passages from Uelese which indicates that a primary decision-maker who is bound to apply the Direction cannot also take into account any material which is before the decision-maker which is relevant to an assessment of this primary consideration. The Government’s views have to be taken into account and given “due regard”, but so must all other circumstances which are relevant in the particular case. As Robertson J pointed out in the final sentence at [64] of Uelese, cl 9.3 of the Direction ends by stating that decision-makers should have “due regard” to the Government’s views on Australian community expectations. What amounts to “due regard” will necessarily require attention to be given to all relevant circumstances in the particular case which bear upon a general assessment of Australian community expectations.
[17] (2016) 248 FCR 296.
It is extremely difficult to fully reconcile the reasoning in these cases. On the Tribunal’s reading of DKXY, Griffith’s J appears to provide some tacit acceptance of Mortimer J’s view that the function of the Tribunal is not to undertake an independent assessment of Australian community expectations but rather to apply the Government’s stated views of those expectations. However, Griffiths J makes an important qualification that, in applying those statements, the Tribunal must do so “in light of all the relevant circumstances which appertain to it” and, further, acknowledges that such an assessment may, in an appropriate case, “not weigh against revocation of the mandatory visa cancellation”. According to His Honour’s reasoning, having made such an assessment the Tribunal must then also go on and weigh that assessment against all of the other relevant considerations. Mortimer J’s description of the consideration as being “a kind of deeming provision” that, in substance, is “adverse to any applicant” stands in stark contrast. Given the inconsistency between the two lines of authority, pending clarification from the Full Federal Court, the Tribunal considers the reasoning in DKXY the appropriate line to follow.
In applying this consideration the Tribunal has had due regard to the Government’s views on the expectations of the Australian community as set out in the Direction. It has undertaken its assessment of those stated expectations in light of all of the specific circumstances of the case, noting in particular:
(a)the serious nature of the applicant’s offending;
(b)the lengthy term of imprisonment;
(c)the real and significant risk of the applicant re-offending and the unacceptable risk of future harm that poses to the Australian community;
(d)that the applicant’s offending was out of character when considered against the backdrop of his broader life including the period prior to him engaging in drug and alcohol abuse
(e)The best interests of minor children Australia;
(f)The length of time that the applicant has lived in Australia, his established ties to Australia including strong family connections and established friendship groups here, the impact a decision may have on family and friends, as well as the contribution he has made to the Australia community;
(g)The impediments that the applicant may experience on his return to New Zealand should the mandatory cancellation of his visa not be revoked;
Having considered all of the evidence before it, the Tribunal is satisfied that the nature and seriousness of the applicant’s offending, the risk of him re-offending and the potential harm that could cause to the Australian community is such that, despite the broader circumstances of the case, the Australian community expectations consideration weighs in favour of not revoking the mandatory cancellation of the applicant’s visa.
Other Considerations
Non-refoulement obligations
There was no evidence before the Tribunal of any potential international non-refoulement obligations owed to the applicant. Accordingly, this consideration is given no weight.
Strength, nature and duration of ties
The Tribunal acknowledges that the applicant has lived in Australia since the age of nine and consequently has established significant ties to Australia. The applicant made clear to the Tribunal that he considers Australia to be his home. In his reasons for revocation, the applicant stated that he has “dreams of a having a family in Australia”. In addition, the Tribunal accepts that the applicant has strong family and friendship ties to Australia. On the evidence before the Tribunal the applicant has a large extended family in Australia including six uncles and aunts, five nieces and nephews and 13 cousins. There were a number of family members who gave evidence in support of the applicant at the hearing including his mother, sister, cousin, aunties, and a personal friend. Taken as a whole, the Tribunal is satisfied that the evidence of the applicant’s supporters demonstrates that the applicant has the benefit of a large, strong, caring and loving support network in Australia.
There was evidence before the Tribunal of the deep emotional connection the applicant has with many members of his wider family as well as with friends in Australia. There was also evidence that the applicant had played a very significant and important role in the lives of many of his family members and friends.
The applicant’s mother described the applicant as having played a very caring and supportive role as a member of the family. She also told the Tribunal that the applicant had very strong friendship networks and was well regarded by members of the extended community. In her oral evidence she stated that “we need him and he needs us”. In a written statement that was addressed to the Tribunal the applicant also stated that he believed his ongoing presence in Australia was important in support of his mother and the proper management of her depression. He also told the Tribunal that he believed that his ongoing presence in Australia was important in order to ensure he was able to provide financially for his family, including his mother.

The applicant’s other sister, Ms Hinerangi Kemp, described being very close to the applicant. Her evidence was that the applicant had played an important supporting role in her life and that to this day she maintained a “great relationship” with the applicant and kept in contact with him on a regular basis.
The applicant’s aunty, Ms Angela Cooper, described her relationship with the applicant as being more consistent with a brother-sister relationship. Ms Cooper stated that the applicant has always been responsible and caring and demonstrated respect towards himself as well as others. Ms Cooper stated that the applicant had “contributed tremendously to the behavioural respect of his younger family members, sisters, cousins and friends by intercepting with meaningful words to show that disrespect was unacceptable and will not be tolerated”. Ms Cooper gave evidence that in her view the applicant was capable of playing a significant and positive role in the lives of his family and friends in the future.
The applicant’s cousin, Mr Smith, told the Tribunal that the applicant had previously lived with him and his family for an extended period of time. He also described the important role the applicant played in the lives of his siblings while they were growing up. Mr Smith described the applicant as being a bit like a little brother to him.
The applicant’s close personal friend, Ms Isaako, gave evidence to the Tribunal of the strong personal relationship she developed with the applicant and the positive role he played in her life and those of family members and friends. She described the applicant as being like a brother to her.
Having considered all of the oral testimony, as well as written references from family and friends, the Tribunal is satisfied that a decision to not revoke the mandatory cancellation of the applicant’s visa would have a significant impact on a large number of family and friends in Australia.
There was evidence that the applicant had made a contribution to the Australian community through various work activities he has undertaken over the years including in retail, physical labour and as a forklift driver. This contribution is somewhat tempered by the applicant’s offending as well as the significant costs his offending has imposed on the Australian community.
The Direction acknowledges a higher tolerance towards offending in respect of a visa holder who has strong ties to the Australian community and where they have lived in Australia for most of their life. The Tribunal accepts that this is applicable to the circumstances of the applicant. Again, however, less weight must be given to this conclusion given the serious nature of the applicant’s offending and the real and significant risk he continues to pose to the Australian community.
Having considered all the evidence before it, the Tribunal finds that, on balance, this consideration weighs in favour of a revocation of the mandatory cancellation of the applicant’s visa.
Impact on Australian business interests
There was no evidence that Australian business interests would be impacted if the cancellation of the applicant’s visa is not revoked. Accordingly, this consideration is given no weight.
Impact on victims
There was no evidence before the Tribunal of the impact a revocation of the cancellation of the applicant’s visa would have on victims of his past offending. The Tribunal therefore places no weight on this consideration.
Extent of impediments if removed
In the course of giving his evidence the applicant told the Tribunal that he had significant concerns about his personal circumstances should he be forced to return to New Zealand to live. The applicant told the Tribunal that a forced return to New Zealand would require him to “start over again” with “no connections and no helping hand”. The applicant told the Tribunal that he was concerned about having some difficulty in obtaining employment if he were to return to New Zealand. The applicant told the Tribunal that he was concerned about his lack of family support in New Zealand and told the Tribunal that “family is everything to me”. In addressing this point, Mr Orchard submitted that while a return to New Zealand would no doubt present some challenges for the applicant, there was no evidence before the Tribunal that those challenges were in any way not manageable.
The Tribunal accepts that re-establishing his life back in New Zealand would be challenging for the applicant; although it acknowledges that the applicant is not likely to experience any language or cultural barriers. The Tribunal acknowledges that the applicant would have increased challenges in endeavouring to maintain his abstinence from alcohol and drugs and also in managing any re-emergence of his previously diagnosed severe alcohol use disorder, severe stimulant disorder and severe cannabis use disorder. There was certainly no evidence before the Tribunal that the applicant would be denied the benefit of health and social support services generally available to New Zealand citizens. There was also evidence of some family members living in New Zealand, although the applicant did indicate that he has not maintained a close relationship with those family members. However, the Tribunal acknowledges that the level of support from family and friends that the applicant would have the benefit of in New Zealand would be significantly less than that available to him in Australia.
The Tribunal also accepts the respondent’s contention that while the applicant may face challenges in securing employment on a return to New Zealand, his young age and relatively good physical health, together with his history of significant labour-based employment in Australia, would suggest that the applicant is likely to have reasonable prospects of securing similar types of employment in New Zealand should he return to live there.
For these reasons, the Tribunal acknowledges that this consideration weighs in favour of the revocation of the mandatory cancellation of the applicant’s visa.
CONCLUSION
The Tribunal has had careful regard to all of the evidence before it and assessed all of the relevant considerations in accordance with the Direction.
In weighing each of the considerations in this matter the Tribunal acknowledges the serious nature of the applicant’s offending and the real and significant risk of him re-offending and as a consequence causing serious future harm to members of the Australian community. For the reasons described above, the Tribunal considers that the risk that the applicant poses in this regard to be an unacceptable one.
The Tribunal acknowledges that in light of the serious nature of the applicant’s offending and the risk he presents to the Australian community, the Australian community would have an expectation that the mandatory cancellation of his visa would not be revoked.
The Tribunal has been very mindful of the potential impact that a decision not to revoke the mandatory cancellation of the applicant’s visa would have on the Australian minor children as identified above.
The Tribunal accepts that the applicant has developed significant ties to the Australian community over the considerable amount of time he is resided here, and has strong family connections and friendship groups here in Australia. The Tribunal acknowledges that his friends and family are likely to be adversely impacted as a consequence of a decision not to revoke the mandatory cancellation of his visa.
The Tribunal also accepts that the applicant is likely to face challenges on his return to New Zealand if his mandatory cancellation is not revoked, as a consequence of having to re-establish himself and undertake the task of securing employment and maintaining abstinence from alcohol and drugs, without the same level of support from family and friends.
Having very carefully weighed all of the considerations, the Tribunal is satisfied that the overall balance weighs slightly in favour of a decision not to revoke the mandatory cancellation of the applicant’s visa.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member

[sgd]........................................................................
Associate
Dated: 24 September 2019

Dates of hearing: 12 September 2019

Applicant: In person

Advocate for the Respondent: Christopher Orchard

Solicitors for the Respondent: Sparke Helmore Lawyers
Annexure 1 – National Police Certificate dated 13 February 2019

[2019] AATA 3770

24 September 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Dates of hearing:	12 September 2019
Applicant:	In person
Advocate for the Respondent:	Christopher Orchard
Solicitors for the Respondent:	Sparke Helmore Lawyers