KFZT and Minister for Immigration and Border Protection (Migration)

[2017] AATA 1121

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )         No: 2016/5484
General Division  )

Re: KFZT
Applicant

And: Minister for Immigration and Border Protection
Respondent

DIRECTION

TRIBUNAL:              Brigadier AG Warner, Member

DATE:   10 August 2017

PLACE:                    Perth

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by replacing any reference to “KZFT” with a reference to “KFZT”.

...................................................................

Member

KFZT and Minister for Immigration and Border Protection (Migration) [2017] AATA 1121 (14 July 2017)

Division:GENERAL DIVISION

File Number:          2016/5484

Re:KFZT  

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

Decision

Tribunal:Brigadier AG Warner, Member

Date:14 July 2017

Place:Perth

The Tribunal affirms the decision under review.

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

Brigadier AG Warner, Member

Catchwords

IMMIGRATION – mandatory visa cancellation – discretion to revoke – character test not satisfied – discretion to revoke visa cancellation if another reason – Direction No. 65  primary and other considerations – considerations weigh against revocation of mandatory  cancellation of Applicant’s visa – decision under review affirmed

Legislation

Migration Act 1958 – s 189(1) – s 499(2A) – s 501 – s 501(1) – s 501(3A) – s 501(6) – s 501(7) – s 501CA(4)

Secondary Materials

Ministerial Direction No. 65 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA– paragraphs 6.2, 6.3, 7(1), 8(1), 8(2), 8(3), 12.4(1), 13(2) 13.1.-13.3, 14.1-14.5

REASONS FOR DECISION

Brigadier AG Warner, Member

14 July 2017

introduction

1. On 28 June 2016, KZFT’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Migration Act) (Cancellation Decision).  This was a mandatory cancellation as he was serving a sentence of imprisonment (T2, p.4).

2. KZFT seeks review in the Tribunal of a decision made by a delegate of the Minister for Immigration and Border Protection (the Delegate) on 4 October 2016 to not revoke the cancellation of his visa.  The Delegate was not satisfied that KZFT passed the character test or that there was another reason why the original decision should be revoked (T3, pp.10-21).

3. KZFT is in immigration detention.  He attended the Tribunal hearing in person and was legally represented.

   background

4. KZFT was born in 1982 and is a citizen of New Zealand.

5. KZFT arrived in Australia aged two years old with his immediate family, all of whom continue to reside in Australia.  He has three children in Australia aged 19, 12 and 11 respectively.

6. KZFT’s history of offending dates from 1997 when he was 15 years old.  Since then he has incurred an extensive criminal record which is set out in the table below:

Court	Court Date	Charges	Result
Perth Magistrates Court	30.05.2013	·     Breach of Bail ·     Breach of Community Based Order ·     Damaging property ·     Obstructing public officers ·     Person who breaches CRO or community order without reasonable excuse ·     Possess a Prohibited Drug (Cannabis) ·     Possess a Prohibited Drug (Cannabis) ·     Possess a Smoking Utensil used for smoking a prohibited drug ·     Possess prohibited drug (Methylamphetamine) ·     No Authority to Drive – disqualified/suspended	·     Imprisonment for  1 month concurrent ·     Imprisonment for  3 months concurrent ·     Imprisonment for  2 months concurrent ·     Imprisonment for  2 months concurrent ·     Fine $200 ·     Imprisonment for  1 month concurrent ·     Imprisonment for  1 month concurrent ·     Imprisonment for  1 month concurrent ·     Imprisonment for  2 months concurrent ·     MDL disqualified for 9 months – cumulative; imprisonment 2 months concurrent
District Court of WA	02.04.2013	·     Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine) ·     Possession of a Prohibited Drug with Intent to Sell or Supply (Cannabis)	·     Imprisonment for 4 years imprisonment (concurrent) ·     Imprisonment for 6 months concurrent
Newman Magistrates Court	17.01.2012	·     Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine)	·     Community Based Order for 9 months
Dalwallinu Magistrates Court	06.01.2011	·     Drive whilst Disqualified ·     Exceed speed	·     Fined: $1,500. Licence disqualified for 12 months ·     Fined $300
Newman Magistrates Court	21.12.2010	·     Drive whilst Disqualified	·     Fined: $1,600. Licence disqualified for 9 months
Dalwallinu Magistrates Court	04.11.2010	·     Exceed speed	·     Fined $150
Onslow Magistrates Court	26.10.2010	·     Exceed .05%	·     Fined: $500. Licence disqualified for 3 months
Northam Magistrates Court	28.09.2010	·     Any Person in Possession of Any Firearm/Ammunition and is not the holder of a licence/ permit commits a crime ·     Sole prohibited drug ·     Receiving ·     Possess unlicensed ammunition ·     Possess smoking utensil used for smoking prohibited drug	·     Fined $3,000 ·     Fined $3,000 ·     As above ·     Fined $1,000 ·     Fined $750 ·     Fined $750
Newman Magistrates Court	22.12.2009	·     Exceed .08%	·     Fined $800. Licence disqualified for 3 months
Perth Magistrates Court	06.05.2009	·     Possess a smoking utensil	·     Fined $500
Newman Magistrates Court	29.08.2008	·     Disorderly behaviour in public	·     Fined $1,500
Cue Magistrates Court	17.04.2008	·     Exceed .05%	·     Fined $450. Licence disqualified for 3 months
Newman Magistrates Court	21.08.2007	·     Exceed .05%	·     Fined $350. Licence disqualified for 3 months
South Hedland Magistrates Court	25.08.2005	·     Damage	·     Fined $300
District Court of WA (South Hedland)	22.08.2005	·     Aggravated burglary and commit offence	·     Fined $2,000
Newman Court of Petty Sessions	05.10.2004	·     Drive whilst disqualified ·     Drive whilst suspended ·     Speeding ·     Breach of bail granted	·     Fined $700. Licence disqualified for 15 months ·     Fined $500. Licence disqualified for 15 months ·     Fined $150 ·     Fined $100 ·     Fined $100
Harvey Court of Petty Sessions	21.04.2004	·     Drive whilst suspended ·     Speeding	·     Fined $600. Licence disqualified for 3 months ·     Fined $100
Armadale Court of Petty Sessions	26.03.2004	·     Drive whilst suspended ·     Fail to stop at a stop sign or line	·     Fined $800. Licence disqualified for 6 months ·     Fined $250
Armadale Court of Petty Sessions	13.02.2004	·     Drive whilst suspended ·     Driver contravene red traffic control signal	·     Fined $800. Licence disqualified for 9 months. ·     Fined $250
Armadale Court of Petty Sessions	10.06.2003	·     Drive whilst suspended ·     Exceed .05% ·     Fail to stop at a stop sign or line	·     Fined $300. Licence disqualified for 4 months. ·     Fined $200. Licence disqualified for 3 months. ·     Fined $150
Perth Court of Petty Sessions	29.05.2002	·     Exceed .08% ·     Drive a motor vehicle while unlicensed	·     Fined $400. Licence disqualified for 3 months ·     Fined $200. Licence disqualified for 3 months
Armadale Court of Petty Sessions	24.11.2000	·     Exceed .02% ·     Careless driving ·     Drive contrary to learner’s permit	·     Fined $200. Licence disqualified for 6 ·     Fined $150. Licence disqualified for 3 months ·     Fined $100
Newman Children’s Court	05.01.1999	·     Insufficient Lights (Bicycle) ·     Fail to wear bicycle helmet	·     Fined $100 ·     Fined $60
Newman Children’s Court	07.01.1998	·     Fail to wear / Correctly wear helmet ·     No lights bicycle	·     On each charge. Without conviction. No further penalty imposed.
Newman Children’s Court	03.09.1997	·     On Premises / Curtilage Without Lawful Excuse	·     Youth Community Based Order for 6 months
Newman Children’s Court	04.06.1997	·     Burglary with Intent Aggravated (Place) ·     Burglary and Commit Offence (Place) (3 charges)	·     Youth Community Based Order for 6 months ·     On all charges. Youth Community Based Order for 6 months.

1. On 2 April 2013, KZFT was convicted of possession of prohibited drug with intent to sell or supply (methylamphetamine) and sentenced to four years imprisonment and of possession of prohibited drug with intent to sell or supply (cannabis) and sentenced to six months imprisonment (T4, p.27).

2. KZFT’s visa was cancelled on 28 June 2016.  Consequently, on 15 July 2016, he made representations to the National Character Consideration Centre seeking revocation of the cancellation decision (T4, pp.71-75).

3. KZFT was denied parole and served his full sentence. He was released from prison on 26 July 2016 and subsequently detained in immigration detention under s 189(1) of the Migration Act.

4. On 17 August 2016, KZFT lodged a Request for Removal from Australia (T11, pp.213-214) but subsequently withdrew that request on 20 October 2016 (T15, p.220).

5. On 4 October 2016, the Delegate decided not to revoke the Cancellation Decision (T3, pp.10-21), and KZFT subsequently applied to this Tribunal for a review of the Delegate’s decision.

   issue

6. There is no dispute that KZFT does not pass the character test by reason of his substantial criminal record (Exhibit 2, para 27). Therefore, the issue before the Tribunal is whether there is any other reason why the cancellation of KZFT‘s visa should be revoked pursuant to s 501CA(4)(b) of the Migration Act.

   relevant legislation and direction

7. Section 501 of the Migration Act deals with refusals or cancellations of visas on character grounds.

8. In order to consider KZFT’s application for review, it is necessary to determine whether the discretion to revoke the Cancellation Decision is enlivened under s 501CA(4) of the Migration Act and, if so, whether it is appropriate to do so in the circumstances. Section 501CA(4) of the Migration Act provides that:

   The Minister may revoke the original decision 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.

9. When considering such matters, the Tribunal must apply directions issued by the Minister under s 499(2A) of the Migration Act. Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65) was issued by the Minister on 22 December 2014 and applies to the present application.

10. The character test is set out in s 501(6) of the Migration Act. Subsection 501(6)(a) 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 provides that a person has a ‘substantial criminal record’ if, among other things, the person has been sentenced to a term of imprisonment of 12 months or more’.

11. Pursuant to s 501(1) of the Migration Act, the Minister (or Tribunal upon review) may refuse to grant a visa to the applicant if an applicant does not satisfy the Minister that he or she passes the character test.

12. Subsection 501(7) of the Migration Act provides:

    (7)For the purposes of the character test, a person has a substantial criminal record if:

    …

    (d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.

13. Once it has been determined that an applicant does not pass the character test because, for example, they have a substantial criminal record, the Tribunal must then determine whether to exercise its discretion conferred by s 501CA(4) of the Migration Act. The Tribunal must have regard to Direction 65.

14. Relevantly, paragraph 6.2 of Direction 65 provides general guidance for decision makers, as follows:

    (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.

15. Paragraph 6.3 then outlines principles which inform the exercise of the Tribunal’s discretionary powers in relation to visa refusal and cancellation:

    (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.

16. For this matter, under paragraph 8(1) of Direction 65, the primary and other considerations set out in Part C must be taken into account. Primary considerations should generally be given greater weight than other considerations: para 8(4). Relevant independent and authoritative evidence must be given appropriate weight: para 8(2).

17. The primary considerations in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, as set out in paragraph 13(2) are:

    (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.

18. Detailed guidance in respect of these primary considerations is provided in paragraphs 13.1 to 13.3.

19. Paragraph 13.1 of Direction 65 requires decision-makers to “have regard to the principle that the Government is committed to protecting the Australian community from harm”, and requires that consideration be given 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.

20. Finally, paragraph 14 of Direction 65 outlines the “other considerations” that may be relevant to the Tribunal when determining whether to exercise its section 501 discretion. They are:

    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.

21. Detailed guidance in respect of these other considerations is given in paragraphs 14.1 to 14.5.

    evidence

22. The Tribunal had before it the following evidence:

    ·The “T Documents” (T1-T16, pp.1-221) (Exhibit 1);

    ·Applicant’s Statement of Facts and Contentions dated 23 January 2017 Exhibit 2);

    ·Statutory Declaration of Ms A dated 19 January 2017 Exhibit 3);

    ·Statutory Declaration of Ms B dated 18 January 2017 (Exhibit 4);

    ·Statutory Declaration of Ms C dated 11 January 2017 (Exhibit 5);

    ·Statutory Declaration of Ms D dated 10 January 2017 (Exhibit 6);

    ·Statutory Declaration of Ms E dated 10 January 2017 (Exhibit 7);

    ·Statutory Declaration (Re pills) of Ms E dated 10 January 2017 (Exhibit 8);

    ·Statutory Declaration of Ms F dated 10 January 2017 (Exhibit 9);

    ·Statutory Declaration of Mr G dated 10 January 2017 (Exhibit 10);

    ·Statutory Declaration of Ms H dated 9 January 2017 (Exhibit 11);

    ·Statutory Declaration (Rehabilitation) of Applicant  dated 13 January 2017 (Exhibit 12);

    ·Statutory Declaration (OMCG status) of Applicant dated 13 January 2017 (Exhibit 13);

    ·Statutory Declaration (Yongah Hill incident) Applicant dated 13 January 2017 (Exhibit 14);

    ·Statutory Declaration (Housing and employment) of Applicant dated 13 January 2017 (Exhibit 15);

    ·Statutory Declaration (Children) of Applicant dated 13 January 2017 (Exhibit 16);

    ·Statutory Declaration of Ms I dated 25 January 2017 (Exhibit 17);

    ·Respondent’s Statement of Facts and Contentions dated 16 February 2017  (Exhibit 18);

    ·SERCO 053/2016 dated 28 November 2016 (Exhibit 19);

    ·SERCO 055/2016 dated 5 December 2016 (Exhibit 20);

    ·SERCO 056/2016 dated 6 December 2016 Exhibit 21);

    ·Applicant’s Heavy Vehicle Driver’s Licence 4250381 (Exhibit 22);

    ·Prisoners Review Board Decision dated 26 June 2014 (Exhibit 23);

    ·Pathways Completion Report dated 12 February 2015 (Exhibit 24);

    ·Certificate IV in Small Business dated 7 March 2017 (Exhibit 25);

    ·RNZ News – “Immigration centre mobile phone ban overturned” dated 21 February 2017 (Exhibit 26);

    ·The oral evidence of the Applicant;

    ·The oral evidence of Ms B;

    ·The oral evidence of Ms D;

    ·The oral evidence of Ms E;

    ·The oral evidence of Ms F; and

    ·The oral evidence of Mr G.

    consideration

    General

23. There is no dispute that KZFT made representation to the Minister seeking revocation of the mandatory cancellation of his visa (T2, pp.5-8).  In its considerations below, the Tribunal has regard to the grounds of KZFT’s representation which the Respondent summarised as follows:

    ·He has two minor sons aged 11 and 12 years of age with whom he has a close relationship.

    ·His offending was partly attributable to societal pressure to achieve financial goals.

    ·He has lived in Australia since he was two years old.

    ·He has many relatives in Australia.

    ·He has worked in labouring roles and has future employment options.

    ·He has undertaken community service.

    ·He suffers from Post-Traumatic Stress Disorder (T3, p.14).

1. Having determined that KZFT does not pass the character test, the Tribunal must consider whether there is another reason why the decision to cancel his visa should be revoked, such that the discretion under s 501CA(4) of the Act is enlivened pursuant to

   
   

   s 501CA(4)(b)(ii).

   Primary considerations

   Protection of the Australian community

2. Paragraph 13.1 of Direction 65 requires decision-makers to “have regard to the principle that the Government is committed to protecting the Australian  community from harm”, and requires that consideration be given 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.

   Nature and seriousness of conduct

3. KZFT’s National Police Certificate details the nature, extent, repetition and seriousness of his offending behaviour (T4, pp.23-26), and that criminal history is laid out at paragraph 6 above.

4. On 2 April 2013, KZFT was convicted of possession of a prohibited drug with intent to sell or supply (methylamphetamine) and possession of a prohibited drug with intent to sell or supply (cannabis).  In sentencing remarks, Keen DCJ stated:

   On 27 July 2012 you were stopped whilst in a motor vehicle and the vehicle was searched.  Methylamphetamine was found in the vehicle, that which was analysed and identified to be 2.05 grams of methylamphetamine with a purity of 7.5%.

   Other indicia of drug dealing, namely scales was also found.  And also found were other quantities of the drug, namely 9.95 grams with a purity of 80% and 72.6 grams with a purity of 33%.  Numerous clipseal bags and other items were found including an order book which referred to some $63,000.

   In addition to all of this some 33 packets of cannabis, weighing in total 25 grams were found.  And the potential street value of the methylamphetamine in Newman or the Pilbara, was said to be about $175,000 and of the cannabis about $5,000 (T4, p.33).

5. Keen DCJ noted that KZFT committed the offences whilst on a community-based order, and that:

   These offences on the indictment are self-evidently very serious.  They involve a total of 87.6 grams of methylamphetamine; that’s a large amount.  Fifteen grams of that was at high purity and the remainder at what I would describe as a mid-level purity.  It is also quite clear from your interview and the items that were found on you that you were in the business of dealing and in my view probably at the mid-level.

   Whilst the quantity and purity of these drugs are relevant considerations, they are just one part of the matrix for sentencing and it is important to note, as counsel for the State has pointed out, that no matter how one dresses up your involvement, it was commercial dealing (T4, p.35).

6. KZFT first offended in 1997 when 15 years old, and then amassed some 50 convictions prior to his incarceration.  His criminal history is not only extensive, but indicates repeat convictions for burglary, drink driving and driving while suspended (T4, pp.23-26).  In commenting on offences which attracted a number of fines in the Northam Magistrates Court on 28 September 2010 (T4, p.28), KZFT told the Tribunal that at that time he was selling cannabis more often than indicated by his recorded convictions.

7. In addition to the four year sentence imposed on 2 April 2013 and discussed above, KZFT received further concurrent sentences of imprisonment on 30 May 2013 for a range of offences including obstructing public officers, damaging property, possessing cannabis, possessing methylamphetamine and breach of bail (T4, p.23).  These custodial sentences provide further evidence of the seriousness of his offending.

8. In concluding contentions related to the nature and seriousness of KZFT’s conduct, the Respondent stated:

   Taking into account the nature of the offences, the comments of the court in  sentencing together with the general Guidance and Principles set out in Direction No. 65, it is the respondent’s contention that the offences committed by the applicant weigh in favour of cancellation and does so to a significant degree (Exhibit 18, para 26).

9. The Tribunal is satisfied that the evidence supports the Respondent’s contention and agrees. It follows that the nature and seriousness of KZFT’s criminal conduct weighs against revoking cancellation of his visa.

   Risk to the Australian community

10. In assessing the risk to the Australian community, the Tribunal has regard, cumulatively, to the harm to individuals or the Australian community should KZFT engage in further criminal or serious conduct.

11. In addressing the likelihood of reoffending, KZFT stated:

    I think the likelihood of reoffending is very low.  I have addressed my addiction problems and completed various self-development courses.  Also I know that definite deportation would occur if indeed I did and all I can say is I will continue to get counselling and try to become a better role model for my kids and the community (T4, p.58).

12. As can be seen from the table at paragraph 6 above, KZFT has accrued a lengthy criminal history from the age of 15.  The Respond relevantly submits:

    In addition to the applicant’s more serious offending there are also a number of other crimes involving firearms offences, disorderly behaviour, receiving, driving under the influence and driving whilst under suspension.  Whilst the applicant’s earlier offending largely comprised of minor offences, it is also the case that he received convictions for aggravated burglary and damage offences in 2005 and 4 burglary offences in 1997.  The offending has increased in severity since 2010 and a clear pattern of offending has emerged since then (Exhibit 18, para 30).

13. The Respondent also relies on the Prisoners Review Board (PRB) denial of parole for KZFT on 26 June 2014.  In its reasons for denial, the PRB stated:

    In making this decision the Board took into account the release considerations in s.5A of the Sentence Administration Act 2003 (WA), giving paramount consideration to the safety of the community. The Board decided that your release would present an unacceptable risk to the safety of the community, there is a likelihood of you committing an offence whilst subject to a Parole Order and that there is a likelihood that you will fail to comply with the conditions of a Parole Order……(Exhibit 23).

14. The Tribunal accepts that to his credit, KZFT completed mandated and voluntary programmatic interventions with recorded treatment gains whilst in custody.  He also undertook accredited education and training courses (Exhibit 2 p7).  These activities should assist KZFT to live a prosocial life, whether that is in Australia or New Zealand.

15. Relevant to KZFT’s risk of reoffending, Keen DCJ stated in his sentencing remarks on 2 April 2013:

    There are aggravating features in this case, inasmuch as the offending was committed whilst you were on this community-based order.  In other words, the magistrate had not imprisoned you, but allowed you to remain in the community on that order, but you breached it and you continued to commit these offences (T4, p.35).

16. In addition to KZFT’s history with illicit substances, the nature and extent of KZFT’s involvement with outlaw motorcycle gangs are relevant to the Tribunal’s consideration of risk.  This issue is laid out in the Revocation Submission dated 4 October 2016 (T3, p.7).  While the Tribunal accepts KZFT’s denial that he is or has been a gang member, it notes the remarks of Keen DCJ:

    And you said in the pre-sentence report that you admit to selling the drugs but for an outlaw motorcycle gang.  You had lost some drugs and you had been threatened, accordingly it’s your case you were being forced to sell drugs in order to pay back the gang (T3, p.33).

17. Having carefully considered all the material before it, the Tribunal is unable to conclude that there is no risk of KZFT reoffending with associated risk to the Australian community. Consequently, given the nature of KZFT’s offending and its circumstances, and the risk to individuals and the general community should his serious conduct be repeated, the Tribunal finds the risk unacceptable. Accordingly, this element of the first primary consideration weighs against revocation of the cancellation of the Cancellation Decision.

    Best interests of minor children in Australia

18. The second primary consideration is whether revocation is in the best interests of minor children.

19. Paragraph 13.2 of Direction 65 sets out factors to be considered in assessing the best interests of minor children.  These include:

    (a)the nature and duration of the relationship between the child and the person;

    (b)the extent to which the person is likely to play a positive parental role in relation to the child;

    (c)the likely effect that any separation from the person would have on the child;

    (d)whether there are any other people who fulfil parental roles with the child;

    (e)any known wishes of the child; and

    (f)any evidence that the person has abused or neglected the child or that the child has otherwise suffered trauma from the person’s actions.

20. The Direction also requires that:  “If there are two or more relevant children, the best interests of each child may be given individual consideration to the extent that their interests may differ” (paragraph 13.2(3)).     

21. KZFT has three children to three different mothers - a daughter born in 1997 and two sons born in 2003 and 2005 respectively.  At the time of this hearing, the sons were residing with their respective mothers in Western Australia.

22. KZFT described his relationship with his children in the Personal Particulars Form completed on 28 June 2016.  He said that his daughter was born when he was 14 years old and that he stayed with her mother until the child was seven and a half years old.  His daughter then came to reside with him when she turned eleven and was in his care when he was incarcerated.  KZFT further stated:

    Even though all 3 of my children have different mothers, I was present for all their  births and have remained a constant and loving part of their lives.  I talk to my children nearly everyday of the week but obviously cause (sic) I have been incarcerated for so long I have been absent.  I am a loving and caring father which I cannot describe how much this will impact us (T4, p.56).

23. The Delegate considered the best interests of minor children in appropriate detail (T3, pp.18-19).  The Delegate found that it was in the best interests of KZFT’s sons for the mandatory visa cancellation to be revoked but “that the adverse impact on them from non-revocation of the visa cancellation would be limited in extent” (T3, p.19, para 47).

24. The Respondent accepts that it is in the children’s best interests to be raised by both parents, but that the weight afforded this consideration “is lessened by the fact that the applicant’s ex-partners have demonstrated that they are capable of looking after the children, there is no prohibition on the children travelling to New Zealand in the future, and that the applicant will also be able to maintain extensive contact with his children by electronic means” (Exhibit 18, para 44).

25. The Tribunal considers this second primary consideration very important in the present matter.  The written and oral evidence before the Tribunal confirms the extent of KZFT’s family network in Australia, and the importance of family to him and his minor children.  Having carefully considered the relevant evidence, the Tribunal finds that this primary consideration weighs in favour of revocation of the cancellation of KZFT’s visa.  However, that weight is tempered by the following:

    ·KZFT has stated his intention to play a major role in the lives of his two minor children and that they will reside with him.  Noting the present circumstances of the children (see paragraph 48), this intention could cause disruption and separation for one or both of them.

    ·As evident from his extensive criminal record, responsibilities towards his children did not deter KZFT from offending and involvement with illicit substances.  The Tribunal has determined that the risks of KZFT reoffending are unacceptable (see paragraph 45).  The Tribunal has also noted KZFT’s link to an outlaw motorcycle gang (see paragraph 45).  Should he engage in future serious conduct or associate with negative peers, there would be the potential for an adverse impact on the children.

    ·KZFT submits, rightly, that there is no evidence that he has ever abused or neglected his children (Exhibit 2, para 51).  Prior to incarceration, KZFT had a large child support debt, and relevantly submits that: “the child support liability continued to mount while he was in prison and not earning any money and if he’s returned to the community in any employment he’ll address that debt.”

    ·Given KZFT’s incarceration and immigration detention, the respective mothers of the two minor children have been primarily responsible for their care for much of their lives.  Before the Tribunal KZFT expressed satisfaction with the way the children were being raised by their respective mothers.

    ·Before the Tribunal, the children’s grandmother, indicated that she would endeavour to assist her grandchildren visiting KZFT in New Zealand.  She described her support of KZFT children in her statutory declaration, thus:

    My husband and I have been very active and financially supportive of KZFT’s children, our grandchildren.  We have been hands on grandparents since they were born, on many occasions they have resided at our house with KZFT, we visit them as much as possible, they’ve continued to stay with me throughout their lives, talk on the phone almost daily and we have an unbelievable relationship with all three kids, their mothers and grandparents (Exhibit 7 para 5).

    ·In submissions before the Tribunal, the Respondent accepted that despite the circumstances, KZFT has maintained contact with his children via Facebook and telephone and would likely do so on a more regular basis if he remains in Australia. The Tribunal considers that similar contact could be maintained should KZFT be removed to New Zealand, and the children would be entitled to visit him. 

    Expectations of the Australian community

26. Guidance on the third primary consideration, that of the expectations of the Australian community, is provided in paragraph 13.3(1) of Direction 65:

    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 regard to the Government’s views in this respect.

27. The Tribunal is mindful of the principles in paragraph 6.3(5) of Direction 65 which provides that a higher level of tolerance of criminal conduct may be afforded to “a non-citizen who has lived in the Australian community for most of their life, or from a very young age.”  There is no dispute regarding the time KZFT has spent in Australia, and it is appropriate for the Tribunal to consider whether he should be afforded a higher level of tolerance towards his offending behaviour. 

28. KZFT submits that: “while the applicant does have a lengthy record of offending prior to the offence that led to his conviction in 2013, the nature of the pre-2013 offending is not such that the Australian community would expect that he be removed from Australia where he has grown up and lived since 1984 (Exhibit 2, para 55).

29. Even giving due attention to the principles in paragraph 6.3(5), the Tribunal does not agree with this submission.  Having regard, cumulatively, to KZFT’s offending over an extended period, the court’s decision in April 2013 to impose a sentence of imprisonment of four years and declare KZFT a drug trafficker, his involvement in what the court described as commercial drug dealing, the effect of drugs on the community and society and his longstanding involvement with drugs, the Tribunal concludes that the Australian community would expect that KZFT’s visa be cancelled.

30. Weighing the evidence and having regard to the circumstances of KZFT’s offending   behaviour, the Tribunal is reasonably satisfied that the Australian community would find his criminal conduct inconsistent with its expectations and unacceptable.  It follows that this consideration weighs against revocation of the cancellation of KZFT’s visa.

    Other considerations

    International non-refoulement obligations

31. International non-refoulement obligations do not arise in this matter.

    Strength, nature and duration of ties

32. KZFT submits that he “has long-standing, strong ties to the Australian community through close relationships with his children, former partners, parents, siblings, cousins, friends and business associates” (Exhibit 2, para 59).

33. In making the decision to not revoke the cancellation of KZFT’s visa, the Delegate had regard to the following findings relevant to this consideration:

    ·KZFT has lived in Australia for most of his life and has a strong and extensive family network here;

    ·KZFT has spent part of 14 years working in the community and has been involved in, and contributed to community events in Newman; and

    ·Non-revocation of the cancellation of KZFT’s visa and his return to New Zealand will have an emotional impact on his immediate family (T3, pp.19-20).

34. The Tribunal is satisfied that the extensive written and oral evidence before it supports both KZFT’s submission at paragraph 61 above and the findings of the Delegate.

35. Relevant to this consideration, the Respondent submits:

    The applicant arrived in Australia as a child.  His family reside in Australia.  He has also worked in Australia.  Balanced against this, though, is the applicant’s history of substance abuse and consistent offending.

    The respondent concedes that the applicant is likely to have strong ties to Australia, albeit not to the extent that they should outweigh the protection of the Australian community (Exhibit 18, paras 51-52).

36. Having regard to all the evidence and the circumstances relevant to this consideration, the Tribunal concludes that the aggregation of the ties KZFT has formed during his time in Australia, his contribution to the community, his extensive family connections, and the consequences for his immediate family were he to be removed weighs in favour of revocation of the Cancellation Decision. However, the relative effect of this weighing is lessened by KZFT’s offending over an extended period and associated negative contacts.

    Impact on Australian business interests

37. Paragraph 12.4(1) of Direction 65 provides guidance that “an employment link would generally only be given weight where visa refusal would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”

38. KZFT has been employed in Australia.  He also submitted that:  “many of my family members are involved in community-based organisations, operate their own businesses, and have a very strong presence and network in the mining industries of the North-west” (T4, p.79).  However, there is no evidence of business issues of the kind contemplated in paragraph 12.4(1) of Direction 65 that would weigh in favour of revocation of the visa cancellation decision.

    Impact on victims

39. There was no direct evidence before the Tribunal regarding the potential impact on victims should the cancellation decision be revoked.  The Tribunal simply notes the adverse effects of the supply of prohibited drugs including drug use and addiction, criminal activity to fund drugs, the cost to the community in terms of law enforcement and public health, and the health and social impact on individuals.  The Tribunal can go no further with this consideration.

    Impediments if removed

1. The Respondent concedes that KZFT may experience some hardship as a consequence of moving to New Zealand (Exhibit 18, para 57).  The written and oral evidence before the Tribunal is consistent with KZFT’s submission that:

   The applicant has no family or place to go in New Zealand (T4, p.48).  He has never been there since coming to Australia in 1984 (T4, p.60).  His extensive family network is based in Australia (Exhibit 2, para 61).

2. As noted at paragraph 10 above, after his release from prison KZFT on 17 August 2016 lodged a Request for Removal from Australia, but withdrew the request two months later.

3. The Tribunal considers that Australia and New Zealand are broadly analogous in terms of language, heritage, culture, and provision of social, health and other public services.  KZFT’s employment history and the self-development courses undertaken in custody suggest that he could find work in New Zealand. Sally Agnes Williams

4. There is insufficient evidence to support a conclusion that the extent of impediments on KZFT’s removal from Australia weighs in favour of revocation of the non-revocation decision.

   conclusion

5. KZFT has a substantial criminal record and does not pass the character test.

6. Although the Tribunal finds that the primary consideration of the best interests of minor children in Australia and the other consideration of strength, nature and duration of ties favour revocation of cancellation of KZFT’s visa, the Tribunal is satisfied that they are outweighed significantly by the primary considerations of protection of the Australian community and the expectations of the Australian community.

7. Having regard to all of the evidence, and having weighed the primary and other considerations carefully, the Tribunal determines that the correct and preferable decision is to exercise the discretion to not revoke cancellation of KZFT’s visa.

   decision

8. For the reasons outlined above, the decision under review is affirmed.

I certify that the preceding 76 (seventy six) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member

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

Administrative Assistant

Dated: 14 July 2017

Date of hearing:	8 March 2017
Counsel for the  Applicant:	Mr D Blades
Solicitors for the Applicant:	Putt Legal
Representative for the  Respondent:	Mr A Gerrard
Solicitors for the Respondent:	Australian Government Solicitor