LHNC and Minister for Home Affairs (Migration)

LHNC and Minister for Home Affairs (Migration) [2018] AATA 4076 (31 October 2018)
Division:GENERAL DIVISION
File Number(s): 2018/4458
Re:LHNC
APPLICANT

Minister for Home AffairsAnd
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:31 October 2018
Place:Sydney

The decision under review is affirmed.
.........................[sgd]...........................................
Senior Member A Poljak
CATCHWORDS
MIGRATION – mandatory visa cancellation – character test – substantial criminal record – Direction 65 – protection of the Australian community – seriousness and nature of the relevant conduct – escalation of criminal offending – the risk conduct may be repeated – expectations of Australian community – ties to Australian community – extent of impediments if removed – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member A Poljak
31 October 2018

The applicant, LHNC is a citizen of New Zealand and first arrived in Australia on 27 January 2007, at 9 years of age. He was the holder of a Class TY (Subclass 444) Special Category (Temporary) visa (“visa”).
On 12 December 2017, the applicant’s visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on character grounds. The applicant made representations to the Minister to have the cancellation revoked under section 501CA of the Act. On 9 August 2018, a delegate of the Minister found that the discretion under subsection 501CA(4) of the Act to revoke the cancellation of the applicant’s visa was not enlivened. This is the decision under review in these proceedings.
The issue before the Tribunal in these proceedings is whether the decision to cancel the applicant’s visa should be revoked under section 501CA(4) of the Act.
RELEVANT LEGISLATIVE PROVISIONS
Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of sections 501(6) and 501(7).
Section 501(6) defines the character test. Relevantly, a person does not pass the character test if the person has a ‘substantial criminal record’ as defined by subsection 501(7). Section 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Section 501CA(4) of the Act provides that the Minister may revoke the original cancellation decision if the Minister is satisfied that the person passes the character test as defined by section 501; or that there is another reason why the original decision should be revoked. This is a discretionary power.
The power of the Tribunal to review the decision to cancel the applicant’s visa is provided by section 500. Under subsection 499(1) the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is ‘Direction No.65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA’ which commenced on 23 December 2014 (“the Direction”).
CHARACTER TEST
The applicant was convicted of “aggravated break and enter & commit serious indictable offence - people there” in 2017, for which he was sentenced to a term of 3 years imprisonment. He has a ‘substantial criminal record’ in accordance with section 501(7)(c) of the Act and as such, the applicant fails the character test in section 501(6)(a) of the Act.
DIRECTION NO. 65
Paragraph 7 of the Direction sets out how the discretion is to be exercised. Informed by the principles in paragraph 6.3, I must take into account the considerations in Part C, in order to determine whether to revoke the mandatory cancellation of Mr LHNC’s visa.
Under the heading General Guidance (paragraph 6.2), the Direction provides in part:
(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.
…
In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion should be approached. These principles are:
(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 a non-citizen’s visa should be cancelled, or their visa application refused.
The Direction at paragraph 8 requires the decision-maker to take into account the primary and other considerations relevant to the individual case. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations.
The three primary considerations which the Tribunal must take into account are set out in paragraph 13(2) of the Direction as follows:
(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.
PRIMARY CONSIDERATION (A) – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
In determining this primary consideration, I note that I must have regard to matters set out in paragraph 13.1, namely:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens…
(2) Decision-makers should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) The nature and seriousness of the Applicant's conduct to date
The extent of the applicant’s criminal offending is detailed in his National Police Certificate dated 9 April 2018 (“National Police Certificate”). The applicant has a lengthy criminal history dating back to 2012, when he was just 14 years of age.
As a minor, the applicant’s National Police Certificate reveals that between 2012 and 2014, he has a number of convictions of “robbery armed with offensive weapon” and “robbery in company”. The available New South Wales Police Facts Sheets detail the circumstances of a number of the offences. I note that although the robberies involved the use of an offensive weapon, the applicant was not himself wielding the weapon. In any event however he was an active participant in the robberies. Two of the robberies that the applicant was convicted of occurred within a week of each other. In one the victim was strangled and suffered the effects of suffocation while the applicant assisted in the robbery and in the other incident, the victim had a knife held to his throat, with the blade pressed against his skin, as the applicant assisted in the robbery. In 2014, the applicant was convicted of “never licensed person drive vehicle on road – first offence” and “drive conveyance taken without consent of owner”. He served his first control order at 14 years of age and has subsequently cycled in and out of juvenile detention.
In 2015, the applicant was convicted and sentenced for the offences of “larceny” and “goods in personal custody suspected being stolen”, for which he was placed on a two-year good behaviour bond in order to attend counselling, education development, drug or alcohol rehabilitation. In 2016, the applicant was further convicted of the offences of “larceny”, “goods in personal custody suspected being stolen” and “enter inclosed land not prescribed premises without lawful excuse”.
On 1 February 2017, the applicant was convicted of seven counts of “larceny” and two counts of “dishonestly obtain property by deception”, and was sentenced to 12 months imprisonment. All of the offences occurred in a very short time period, namely between 13 January 2016 and 22 February 2016. The applicant accepts that he went on a “crime spree”. Other than one offence, the bulk of the offending was identical, in that the applicant would enter onto the premises of businesses and mostly go to the staffroom and, certainly in one instance, waited for someone to leave the counter in the general store, and would then go to the staffroom and steal wallets or handbags. The charges of dishonestly obtaining property by deception refer to the applicant using someone’s bank cards to make purchases. In sentencing, Magistrate Greenwood remarked:
“It is suggested that you have got insight into your offending; I agree with that, I just note that this has been going on, offending has been going on, some serious offending has been going on for a long time now, and I suppose I am just a little sceptical, I am certainly very sceptical at how easy it will be you to forge this new path that you want to forge; it is going to be much more difficult than you think it will be. But I do accept that with your age, the issue of rehabilitation does loom large.
Also looming large though is specific deterrence because what happened here, you were a one-person crime spree, and there are some real issues in my view as to your planning…
There is a high degree of dishonesty here in your offending and this planning really troubles me. I set an aggregate sentence of 12 months but I do accept you are a person who desperately needs to be rehabilitated, and not just… in relation to the drugs and alcohol, but to find a new way to live your life…”
On 4 September 2017, the applicant was convicted of “aggravated break and enter and commit serious indictable offence - people there”, for which he was sentenced to three years imprisonment, and “assault occasioning actual bodily harm”, for which he was sentenced to 12 months imprisonment (to be served concurrently) (“the 2017 offences”). He pleaded guilty to both offences. In sentencing, Judge Toner SC remarked:
“The offences were committed whilst he was on bail in relation to other offences of a not dissimilar nature to the first of the offences for which he now stands to be sentenced. That is an aggravating feature of this crime that I shall take into account…
As can be seen from the facts there was no weapon employed. There was a degree of impulsivity about the crime because given the extracts or photographs taken from the CCTV footage he made little or no attempt to disguise himself. That does not derogate from the proposition that the young woman who was employed by Quest, which was the victim of this man’s crime, must have been terrified during the course of the robbery itself. To be confronted by person, a young fit man who would have been clearly agitated and she would have sensibly regarded as dangerous, must have been an acutely scary moment for her. It seems to me, as I say, there was a degree of impulsivity about this particular crime, albeit that when he entered the building he intended to commit an offence and the offence as charged was that which he had in mind.
However it does seem to me in the broad scheme of things that this offence is below the middle of the range of objective seriousness for offences of this type but not by that much…
The assault itself whilst adding no doubt to the terror that his victim must have endured was relatively minor. It resulted in her having a cut lip which demonstrates the actual bodily harm, but as I say it was not a particularly serious rendition of this crime standing by itself but it also must be viewed within the context of each of the crimes to assess its consequences and the effect it must have had on his victim, which I have just described. It takes little imagination to come to those conclusions.
He is not very good at crime this young man and for that reason alone he ought to stop…
An additional and significant factor to be taken into account is that since he has been in custody he has served time for a separate offence, which is entirely unrelated to the matters for which he now stands to be sentenced. It was also for larceny offences and he was dealt with in the Local Court. In fact there were 5 separate larceny offences, each of which post-dated this crime…
I should also note that deterrence but general and specific represents a significant part in the sentencing process here.”
The nature and seriousness of the applicant’s conduct are relevant considerations when assessing the risk to the Australian community should the applicant commit further offences or engage in other serious conduct. Paragraph 13.1.1(1)(a) of the Direction provides that offences involving violence are viewed seriously. Also, the seriousness of the applicant’s conduct is reinforced by the sentences imposed on him. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy and accordingly, any such sentence must be viewed as a reflection of the seriousness of the offence involved. In this case, the highest period of imprisonment the applicant was sentenced for was three years.
Having regard to the circumstances of the applicant’s criminal behaviour and the compounding nature of his offences over many years, I find that the applicant’s conduct is to be viewed very seriously. Particularly given that his most recent conviction was for an offence involving violence and that his criminal offending appears to be escalating in frequency and seriousness. The significant extent of the applicant’s criminal offending over many years and his repeated disregard for the law is alarming. I find that the nature and seriousness of the applicant’s criminal conduct should be viewed very seriously.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In assessing whether the applicant represents an unacceptable risk of harm to the Australian community, regard must be had to paragraph 13.1.2 of the Direction. This paragraph provides that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I must have regard to, cumulatively, the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and 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 applicant re-offending.
I have considered the letters of support from the applicant’s numerous family members. They all speak of their desire for the applicant to be given a second chance and express the family’s desire to support and assist him in turning his life around. I have no reason to doubt the sentiments contained in the letters of support and that the support the applicant receives from his family, could possibly assist him in refraining from re-offending. The applicant’s step-sister has also invited the applicant to live with her and her family if he were released. She said that her partner has agreed to support the applicant financially until he got back on his feet. However, I do note that the applicant has had family support over the years when he previously offended. It did little to deter him from engaging in criminal conduct and substance abuse.
When considering the applicant’s risk of reoffending, I am very concerned that the applicant has frequently committed the same types of offences time and time again, despite warnings from the Court, previous convictions and despite spending time in and out of juvenile detention. His pattern of offending is not slowing down but appears to be increasing in frequency and seriousness. The applicant plainly has no regard for the laws of Australia. At hearing, the applicant explained how his time in juvenile detention was not an effective deterrent because most of the time, it was a better environment to what he had at home. He had a hot meal and a bed to sleep in at night. This is supported by the applicant’s mother, who said at hearing that the applicant treated his time in juvenile detention as if it were a “holiday camp”. The applicant claims that now having been in adult prison, he has realised that he needs to change his life. Despite this I did not find him to be particularly insightful about his criminal offending. He expressed that he was sorry and ashamed about his actions but I was not convinced that he had any insight into the consequences of his actions. In regards to his criminal offending, he struggled to remember the details of any of the offences of which he had been convicted and was visibly uncomfortable at hearing when asked about the circumstances surrounding his convictions. He claimed that he did not want to remember his actions from his past. This does not bode well with his evidence that he has reflected on his past criminal offending.
The evidence suggests that psychological trauma may be a contributing factor to the applicant’s criminal offending. From a young age, the applicant was a constant witness to his father’s violence towards his family. Most significantly, the applicant was witness to his father’s brutality and sexual assaults on his sister; crimes for which his father is currently incarcerated. In a report from Ms Andrea Davidson, a psychologist, dated 31 January 2017, the applicant’s family history is detailed. She notes:
“[The applicant] provided evidence that assisted in the conviction of his father (he had been witness to ‘weird behaviour’ between his father and stepsister whilst sharing a bedroom with her as a child). The fact that he was present whilst his father abused his stepsister has caused [the applicant] long-term psychological distress. The family also experienced significant financial stress (his father was the sole source of income for the family and as recent migrants the family was unable to access welfare payments) and became reliant on charity for housing in their basic needs. Within this context, [the applicant] commenced petty crime with his older sisters at 13 years of age (to provide food and money to pay bills). He was also drawn into substance abuse as a means of self-medicating (i.e., to manage emotional distress) and became enmeshed with antisocial influences (and juvenile crime in company) in the process…”

The report of Ms Davidson makes a clear suggestion of what the psychological consequences of witnessing his father’s conduct would have been for the applicant and despite the lack of medical evidence; I have little doubt that the psychological consequences on the applicant could have been significant. However, there is no evidence before me that the applicant has received appropriate psychological treatment, support and/or counselling to assist him in dealing with what happened to him as a child. In sentencing remarks, Judge Toner SC of the District Court strongly encouraged the applicant to seek counselling. Unfortunately this has not occurred. At hearing, the applicant said that he was not offered counselling in prison and has not had the opportunity to seek counselling during his time in immigration detention.
The applicant claims that he has adequately addressed his drug and alcohol issues. I acknowledge that at hearing, the applicant was forthcoming about his drug use in that he admitted to using cannabis and methamphetamine on occasion. However, in light of the evidence it is plain that he was evasive about the full extent of his substance abuse issues. The applicant’s history of substance abuse is outlined in Ms Davidson’s report. She notes that the applicant has a history of binge drinking and illicit substance use (cannabis and methamphetamine) that dates back to 14 years of age (2012) and which is linked to his offending behaviour. Significantly she records that the applicant told her he was “high every time”. It is also noted that the applicant reported using methamphetamine “to make me feel invincible” before doing crime and that he took methamphetamine immediately prior to the commission of the current offences.
The applicant claims to have undertaken some form of rehabilitation while incarcerated however there is no evidence to substantiate the completion of any such treatment. He claims that he has not consumed alcohol or illicit drugs since his incarceration despite having been offered illicit drugs in prison. He says that he is focusing on his physical health and fitness.
There is some discrepancy between the applicant’s evidence and the objective evidence before me. Firstly, in regards to the applicant’s claim that he has not consumed illicit drugs since his incarceration, an Incident Detail Report dated 11 October 2018, shows that in April 2018, the applicant’s room was searched and a “home-made smoking implement made of a toilet roll and what appears to be a pen tit(sic) was found”. The applicant shared his room with another detainee and neither of them accepted ownership of the contraband. While I cannot make any determinative findings about the ownership of the contraband and what this means in regards to the applicant’s evidence, I note it purely for completeness. Secondly, the applicant was questioned at hearing about whether or not he had a drug debt in prison, to which he responded that he did not. On this issue I note a Placement/Threat Assessment report for the applicant dated 23 July 2016. Under the heading ‘Record Inmate Interview’ it is noted, “has drug debt in area. W2K has threatened to ‘get’ him if he remains within the area…”. The applicant claims that he only said he had a drug debt because he wanted to be placed in protective custody for another undisclosed reason. Again I cannot make any determinative findings based on this evidence but I note the inconsistency purely for completeness.
On the available evidence, I am not satisfied that the applicant has adequately addressed his substance abuse issues. Despite claiming that he no longer uses drugs, I’m not convinced on the evidence that he has rehabilitated.
In regards to recidivism, I do not have before me any reports from a psychologist or psychiatrist on this issue. The applicant claims that he has found God and looks to the Church for support. He was recently baptised in prison. While I accept that the applicant’s focus and state of mind is a positive indication of his willingness to rehabilitate, any impact that this has had on the applicant is largely untested in the community due to his term of imprisonment and subsequent time in immigration detention.
The evidence shows that the applicant has had numerous opportunities in the past to cease offending, but continued to do so. In particular, the offences which are the subject of his most recent convictions occurred while he was on a good behaviour bond or on bail for similar offences. I have very little faith in his prospects of rehabilitation.
Overall, on the evidence before me, I find that there remains a real risk of the applicant re-offending. I am not convinced that any risk, particularly in regards to criminal conduct involving aggravated assault and the fact that the applicant’s criminal offending appears to be escalating in seriousness, is an acceptable risk. As such this primary consideration weighs heavily against a decision to restore the applicant’s visa status.
PRIMARY CONSIDERATION (B) – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2 of the Direction provides that decision-makers must make a determination about whether cancellation is, or is not, in the best interests of minor children in Australia affected by the decision. This consideration applies only if the child is, would be, under 18 years old at the time when the decision to cancel the visa is expected to be made.
The applicant has not identified any minor children affected by his visa cancellation. I do note however that the applicant has one brother who is approximately 15 years of age. The applicant’s relationship to his brother is non-parental and he acknowledges that his mother fulfils the parental role.
Accordingly, this consideration does not weigh in the applicant’s favour and is neutral.
PRIMARY CONSIDERATION (C) – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3(1) provides:
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.
In making the Direction, the Minister has made it clear 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 (at paragraph 13.1(1)). The principles to be applied, as set out in paragraph 6.3, state that the right of a non-citizen to be able to come to or remain in Australia is a privilege conferred in the expectation that he or she is and will be law-abiding.
Relevant to this matter, I have had particular regard to clause 6.3(5) of the Direction that states in part, “...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....”. The applicant arrived in Australia at the age of nine and has resided continuously in Australia since that date however, he started offending at the age of 14 in 2012 and has continued to offend up until 2017.
In YNQY v Minister for immigration and Border Protection [2017] FCA 1466, Mortimer J said at [76]:
[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.
Clearly the applicant has not met the community expectation that as a non-citizen he will obey the laws of this country. The applicant has repeatedly committed the same or similar offences (for example, robbery in company, larceny, robbery armed with offensive weapon), time and time again, and has recently committed crimes involving violence.
Given the ‘nature and character’ of the applicant’s criminal offending, I’m satisfied that the community would now expect that the applicant would be denied the opportunity to remain in Australia. He would no doubt have exhausted the trust and patience of the Australian community who would now expect that it is no longer appropriate for it to bear the cost of the resources expended in criminal justice and corrections involved in responding to the applicant’s offending and as stated above, I am not convinced that the applicant has rehabilitated. While the Australian community has greater tolerance for people who have resided in Australia for a long time and from a young age, given the applicant’s long history of offending and the nature of his offences; the tolerance of the Australian community has surely run out.
OTHER RELEVANT CONSIDERATIONS SET OUT IN DIRECTION NO. 65
Paragraph 14 of the Direction provides for other considerations relevant to deciding whether the cancellation of the applicant’s visa should be revoked including the strength, nature and duration of his ties to Australia and the extent of impediments if the applicant were removed from Australia.
Strength, nature and duration of ties to Australia
Paragraph 14.2(1) of the Direction sets out two main factors to be considered in assessing the strength, nature and duration of a person’s ties to Australia:
a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the person began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community; and
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents, and/or persons who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The applicant has resided in Australia for more than half of his young life; having arrived in Australia at the age of nine. However, less weight should be given to this consideration because the applicant started criminally offending at the age of 14 and has continued to commit criminal offences since that time. He has been criminally offending for most of the time he has resided in Australia.
I accept the applicant has strong family ties to Australia.
The applicant says that he is close to his mother and siblings, who all reside in Australia, and I have no reason to doubt the strength of these relationships. A number of the applicant’s family members were present at the hearing to support him and I accept they will be negatively impacted if the applicant is deported; it will no doubt take a significant emotional toll on his family.
In regards to specific impact, the applicant states in his Personal Circumstances Form dated 21 December 2017, “the impact it would have would devastate my family because my dad is in jail and I’m the only man in the house to provide for my family and keep them safe. They will lose a lot if I get deported.” The applicant also refers to his girlfriend and claims that she depends on him financially. Firstly, the applicant confirmed at hearing that he is no longer in a relationship with his girlfriend. As such any consideration of the impact on her is no longer relevant. Secondly, the applicant has been incarcerated for some 18 months prior to immigration detention. During this time his family has not been dependent on him financially or otherwise. This was accepted by the applicant at hearing.
The applicant will be able to maintain contact with his Australian based family were he to be removed to New Zealand. I accept that this will primarily be via electronic means and telephone. The applicant’s mother and sister both gave evidence at hearing that they would never visit New Zealand. I have no doubt that this is true because they have both given evidence that they are fearful of seeing the applicant’s father again and fear retaliation from him and his family (who reside in New Zealand).
While the applicant’s strength, nature and duration of ties to Australia favour the applicant, this consideration is significantly outweighed by the relevant primary considerations of the risk to the Australian community and the community’s expectations.
Extent of impediments if removed
I note that the applicant has concerns about returning to New Zealand because he claims that he has no family or social support in New Zealand.
There is no substantive language or cultural barrier to the applicant returning to New Zealand. There is no evidence before me that the applicant is affected by any health conditions affecting his ability to continue his education and obtain employment. The applicant is a very young man and has big ambitions for his future. At hearing he expressed a desire to continue with his studies and possibly pursue a career in accounting. The applicant said that he would still aim to achieve these goals if he was removed to New Zealand.
As a New Zealand citizen he would have access to a social welfare and a public health system, comparable to those of Australia, which would be available to him if he were to suffer any financial or medical hardship in New Zealand. I accept that the applicant will face a period of adjustment in New Zealand and will face certain impediments. The challenges likely faced by the applicant upon his arrival in New Zealand are not insurmountable.
The applicant’s family members have voiced concern about the applicant’s safety if he were to be returned to New Zealand. The applicant’s mother says in her statement dated 16 October 2018 that the applicant’s father has made threats through family members against the applicant’s life. The applicant’s father is currently incarcerated and is due for release in 2019. Due to the nature of his crimes being of a sexual nature towards a minor, he will likely be deported to New Zealand upon his release. The applicant says he is fearful of seeing his father and the applicant’s mother and step-sister also say that they hold fears that the applicant’s father and his family may seek him out and “hurt him” in retaliation. This is primarily based on the fact that the applicant gave evidence against his father and assisted the Crown in criminal proceedings for crimes he committed against the applicant’s step-sister.
While I accept that the applicant and his family hold fears about retaliation and what will happen after the applicant’s father is released from prison, I do not have any evidence before me of specific threats made against the applicant nor any evidence about the exact release date for the applicant’s father and/or when he will be deported to New Zealand. As such, I am unable to make a finding about the risk of harm and whether it is substantial. The Minister contends, and I accept that the applicant’s claims do not give rise to international non-refoulement obligations; in any event, I have taken them into consideration when considering the extent of impediments if the applicant were to be removed to New Zealand.
Additionally, in a statement dated 16 October 2018, the applicant’s step-sister says she is fearful that if the applicant is returned to New Zealand, he will again be exposed to drug use and gang affiliation. She claims that many of the applicant’s cousins around his age have joined notorious New Zealand gangs. I have taken this evidence into account but hope that the applicant’s claims of rehabilitation go some way towards helping him in resist such temptations.
Overall, this factor favours revocation of the cancellation decision; however it is significantly outweighed by the primary considerations of the risk to the Australian community and the Australian community’s expectations.
CONCLUSION
The reasons outlined above, the Principles and the two primary considerations of the protection of the Australian community and the expectations of the Australian community, weigh heavily against revocation of the mandatory cancellation of the applicant’s visa. Those Principles and considerations significantly outweigh the other considerations in favour of revocation.
The decision under review is affirmed.

I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

........................[sgd]............................................
Associate
Dated: 31 October 2018

Date(s) of hearing: 18 & 19 October 2018

Applicant: In person

Solicitors for the Respondent: Sparke Helmore Lawyers

[2018] AATA 4076

31 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date(s) of hearing:	18 & 19 October 2018
Applicant:	In person
Solicitors for the Respondent:	Sparke Helmore Lawyers