Loker Mandella Nono and Minister for Immigration and Citizenship
[2012] AATA 315
•28 May 2012
[2012] AATA 315
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0987
Re
Loker Mandella Nono
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Deputy President R P Handley
Senior Member G LazanasDate 28 May 2012 Date of written reasons 28 May 2012 Place Sydney Decision Summary
The decision under review is set aside and a decision substituted that Mr Nono’s visa not be cancelled.
........[sgd].....................................
Deputy President R P Handley
CATCHWORDS
IMMIGRATION – visa cancellation – Direction 41 - character test – substantial criminal record – primary considerations – protection of the Australian community – seriousness and nature of the conduct – risk that the conduct may be repeated – whether a minor when person began living in Australia – length of time ordinarily resident in Australia prior to engaging in criminal activity – best interests of the child - other considerations - family ties, the nature and extent of any relationships – person’s age – person’s health – links to the country to which they would be removed – hardship likely to be experienced by the person or their immediate family members – level of education – whether the person has been formally advised in the past of conduct that brought the person within deportation provisions
LEGISLATION
Migration Act 1958 (Cth)CASES
Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390
Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133
SECONDARY MATERIALS
Direction [no. 41] - Visa Refusal and Cancellation under section 501
REASONS FOR DECISION
Deputy President R P Handley
Senior Member G LazanasMay 2012
Mr Nono has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel his visa on the ground that he does not pass the character test because of his substantial criminal record.
BACKGROUND
Mr Nono was born in Sudan in March 1990 and is now aged 22. He and his family fled to Kenya from Sudan via Uganda arriving in Kenya when he was four. The family spent about five years living in a refugee camp in Kenya before being accepted for migration to New Zealand when Mr Nono was 9. He is a New Zealand citizen. Mr Nono arrived in Australia on 17 November 2007, aged 17, and has not departed since. Until his visa was cancelled, he was the holder of a Class TY Subclass 444 Special Category (Temporary) visa that permitted him to stay in Australia indefinitely. His parents and his siblings now all live in Australia as do some other relatives.
Mr Nono’s criminal history in Australia dates from 7 January 2009, after he had been in Australia for nearly 14 months, when he was found guilty of using a false instrument with intent. While no conviction was recorded, Mr Nono was required to enter into a 12 month good behaviour bond. Mr Nono’s criminal history includes the following relatively minor offences:
·On 29 September 2009, he was convicted in Blacktown Local Court of possessing equipment for administering prohibited drugs and fined $100;
·On 29 October 2009, he was convicted in Blacktown Local Court of entering enclosed land without lawful excuse and fined $120;
·On 30 November 2009, he was convicted in Blacktown Local Court of having custody of a knife in a public place and fined $200;
·On 9 September 2010, he was convicted in Blacktown Local Court in respect of the following:
oGoods in personal custody suspected of being stolen (two year good behaviour bond imposed);
oResisting a police officer in the execution of their duty (two year good behaviour bond imposed);
oCustody of a knife in a public place (fined $300);
oEntering enclosed land without lawful excuse in respect of the above three offences and fined $100 for each offence; and
oShoplifting.
Mr Nono’s most serious conviction is in respect of an armed robbery he committed at Quakers Hill on 4 October 2009. On 3 October 2009, Mr Nono had been attending a party at a private house. Shortly before midnight, a call was made requesting a home delivery of nine pizzas for a house across the road from the party. At about midnight, the delivery driver arrived in the street to deliver the pizzas. Mr Nono, together with another man, approached the driver. Mr Nono demanded the driver’s money and held up a large knife he had with him. The driver handed over a blue pencil case containing about $460. The men then took the pizzas, a bottle of Coca Cola, and Mr Nono told the driver to leave, threatening that he knew where the driver worked and warning what would happen if he contacted the police. Police were notified immediately of the robbery, shortly after which Mr Nono and his co-offender were arrested and taken to a police station
Mr Nono has acknowledged that he was affected by both drugs and alcohol at the time he committed the offence. He claims to have a very limited recollection of what occurred.
Mr Nono pleaded not guilty to the charge of robbery armed with an offensive weapon but was found guilty by a jury on 18 March 2011 after a nine day trial. On 29 July 2011, Her Honour Gibson DCJ sentenced Mr Nono to five years imprisonment, with a non-parole period of two years and three months commencing on 4 February 2010 and ending on 3 May 2012 (at the time of sentencing, Mr Nono had already been in custody for one year, five months and 25 days). Mr Nono’s parole period ends on 3 February 2015.
Mr Nono incurred no institutional charges during his time in prison. He was released on parole on 3 May 2012 and taken into immigration detention at Villawood.
On 21 September 2011, the Department of Immigration and Citizenship (the Department) sent Mr Nono a ‘Notice of Intention to Consider Cancellation’ of his visa, inviting him to respond. On 4 November 2011, the Department also sent Mr Nono an ‘Immigration Report’, also dated 4 November 2011, prepared by the NSW Probation and Parole Service (the Immigration Report), inviting his comments. Mr Nono responded by submitting a completed ‘Personal Details Form’ and two letters.
On 23 February 2012, a delegate of the Minister decided to cancel Mr Nono’s visa and Mr Nono was notified of this by letter dated 28 February 2012 which he received on 8 March 2012. On 15 March 2012, Mr Nono applied to the Tribunal for a review of this decision.
RELEVANT LAW AND POLICY
Section 501(2) of the Migration Act 1958 provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”. Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record. ‘Substantial criminal record’ is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
Mr Nono has been sentenced to a term of imprisonment of five years imprisonment. Thus, he does not pass the character test. It was therefore open to the Minister to cancel Mr Nono’s visa. In exercising this discretion, the decision-maker must apply Direction [no. 41] - Visa refusal and cancellation under s 501 of the Act (Direction 41). Direction 41 contains a number of ‘primary’ and ‘other’ considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
The ‘primary’ considerations in Direction 41 are set out in paragraph 10(1):
The primary considerations
(1) In deciding whether to refuse to grant a person a visa or cancel a person’s visa, the following (the primary considerations) are to be considered:
(a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b) whether the person was a minor when they began living in Australia;
(c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
(Original emphasis)
These considerations are elaborated on by a range of factors to which regard must be had. There are also a number of ‘other’ considerations that, where relevant, must be taken into account but, generally, in accordance with Direction 41 paragraph 11(2), they should be given less weight than the ‘primary’ considerations. Those ‘other’ considerations are discussed below.
PRIMARY CONSIDERATIONS
The ‘primary’ considerations relevant in Mr Nono’s case are the protection of the Australian community, whether he was a minor when he began living in Australia, the length of time he was ordinarily resident in Australia prior to engaging in criminal activity, and relevant international obligations. These considerations are addressed below.
THE PROTECTION OF THE AUSTRALIAN COMMUNITY
Direction 41 identifies two factors relevant to this consideration: the seriousness and nature of the relevant conduct and the risk that the conduct may be repeated.
The seriousness of the conduct
With regard to the seriousness of Mr Nono’s conduct, the Tribunal notes that “Crimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community” (paragraph 10.1.1(1) of Direction 41). Among the examples of offences and conduct that are considered serious listed in paragraph 10.1.1(2) of Direction 41 is robbery.
Paragraph 10.1.1(3) of Direction 41 states that “The sentence imposed for an offence is considered indicative of the seriousness of the offender’s conduct against the community”, and regard must be had to the number and nature of offences, the period between offences and the time elapsed since the most recent offence. Among the factors to be considered pursuant to paragraph 10.1.1(4) are any judicial comments made about the person, parole assessments and any relevant mitigating factors.
The offences for which Mr Nono has been sentenced all took place in a relatively short period of time between late 2008 and late 2009. He had no prior convictions in New Zealand before coming to Australia, although Gibson DCJ noted he began drinking at the age of 12 and taking drugs, first marijuana and then amphetamines, at the age of 15.
In sentencing Mr Nono on 29 July 2011, Gibson DCJ, in acknowledging the offence (of robbery armed with an offensive weapon) was “objectively serious”, noted “there was a serious threat of future violence and a knife was used in the commission of the offence”. However, she described the offence as falling “towards the bottom of the range in terms of seriousness”. Her Honour said no aggravating factors had been brought to her attention in relation to the offence.
Gibson DCJ also noted that there were mitigating factors present in Mr Nono’s circumstances. She referred to his background in Sudan, the violence and atrocities he experienced as a child, and the five years spent with his family as a refugee in Kenya. Her Honour noted that Mr Nono comes from a loving and supportive family and that he had “undergone detoxification since his entry into custody on April 2010” (sic). Having regard to a positive change in his attitude and his detoxification, she said his prospects for rehabilitation were good, “particularly if, with the appropriate assistance and supervision on release he is able to maintain the motivation to overcome his drug and alcohol problems”.
The Immigration Report states that Mr Nono is classified as a C2 minimum security inmate and “has not been subject to any breaches of correctional centre discipline”, or “come to the negative attention of staff”. The Report states Mr Nono has participated in both educational and offence targeted interventions whilst in custody and has maintained correctional centre employment when available. Mr Nono was, at that time (4 November 2011) completing the Gurnang Life Challenge, Young Offenders program, and feedback from program facilitators was positive. The Report concludes that if Mr Nono continues with his positive efforts, it is likely Probation and Parole “would recommend Mr Nono’s release to Parole”. As noted above, he was subsequently released on parole on 3 May 2012 but immediately taken into immigration detention.
Mr Nono’s offences were committed over a period of about 12 months between late 2008 and late 2009. Most of the offences are of a relatively minor nature, punished with fines and good behaviour bonds, and only the offence of robbery with an offensive weapon attracted a prison sentence, albeit a term of five years with a non-parole period of two years and three months. As Gibson DCJ noted in her sentencing remarks, the robbery, in which Mr Nono was armed with a knife, did not involve violence although a serious threat of future violence was made to the victim of the robbery, a pizza delivery man.
The Tribunal notes that two of Mr Nono’s more minor convictions are in respect of his having custody of a knife in a public place. However, his evidence in the Tribunal is that, in fact, these were ordinary domestic stationery scissors, and a copy of a photograph of an exhibit from the hearing before Blacktown Local Court on 9 September 2010 which shows stationery scissors confirms this. Mr Nono said the scissors which he claims were the subject of the earlier conviction in the proceedings on 30 November 2009 were a smaller version of those before the Court on 9 September 2010. He said that in both cases he used the scissors for cutting cannabis.
The five year sentence handed down by Gibson DCJ is an indication of the seriousness of the offence although she stated that his prospects for rehabilitation were good and this was a factor in her deciding on a non-parole period of two years and three months so that Mr Nono could experience an extended period of supervision on his release into the community.
The risk that the conduct may be repeated
With regard to the risk that the conduct may be repeated, paragraph 10.1.2 of Direction 41 requires that consideration be given to Mr Nono’s previous general conduct and total criminal history and, in particular, to any recent history of convictions, evidence of rehabilitation, and evidence as to whether he has breached any judicial orders, including bail and parole orders.
With regard to judicial orders, two of Mr Nono’s offences were committed while he was subject to a good behaviour bond. He also failed to appear to answer the charge of robbery with an offensive weapon, which was presumably in breach of his bail conditions and led to a warrant being issued for his arrest and to his being detained in custody pending trial. Mr Nono told us that he missed the court appearance because he overslept that day and missed his train. He was arrested at his home two days later.
Mr Nono’s convictions are all relatively recent. Nevertheless, the prospects for his rehabilitation appear to be good as noted by Gibson DCJ in her sentencing remarks and also by the Probation and Parole Service in the Immigration Report, which refers to Mr Nono’s “positive efforts”.
Mr Nono has completed the following programs/courses while in custody, for which the Tribunal has been provided with the relevant certificates or academic transcripts:
oThe Young Adult Preparation Program (addressing developing attitudes and motivation to achieve, openness and readiness, and a future dynamic risk plan) – Certificate of Achievement dated 24 – 25 August 2011;
oThe Gurnang Life Challenge Program – Certificate of Completion dated 23 December 2011;
oThe Salvation Army Positive Lifestyle Program (Stress Management, Assertiveness, Self-Esteem, Grief, Conflict Resolution) – Certificate of Completion dated 14 December 2011;
oThe Getting Smart 12 Session Addiction Program (addressing the use of drugs and alcohol) - Certificate of Completion dated October 2011; and
oTAFE units completed in ‘Follow Defined OH & S Policies and Procedures’ (6 July 2011) , ‘Shift materials safely using manual handling methods’ (6 July 2011), “Carry Out Measurements and Calculations’ and ‘Read and Interpret Plans and Specifications” (27 October 2011).
In his affidavit dated 4 May 2012, Mr Nono said he has also completed a bobcat licence, a forklift driver’s licence, and courses in transport and warehousing skills, computer skills and working in a metal shop. He told the Tribunal that the ‘Positive Lifestyle’, ‘Getting Smart’ and ‘Managing Emotions’ programs he has completed have been particularly influential on his thinking. Mr Nono said he has also worked for most of his time in prison. His jobs have included cleaning, ground maintenance, the laundry and wi-link. Mr Nono said he has used his time in prison to give himself “the best shot” when he is released.
Gibson DCJ was provided with a Psychological Report from Anita Duffy, Psychologist, dated 18 July 2011. Ms Duffy refers to the friction between Mr Nono and his father which ultimately led to Mr Nono leaving home. Mr Nono told the Tribunal that about 10 months into his imprisonment he realised that he must think about the consequences of his actions, including the effect on his family, and take responsibility for those actions. He wrote a letter of apology to his father telling him this. After this, he and his father started talking again, his father began visiting him, even at Oberon Correctional Centre, and since then they have established a good relationship. Mr Nono said he now seeks his family’s help and guidance.
Mr Nono’s father also gave evidence and confirmed this. He said at the time his son committed the robbery, their relationship had broken down and, initially, he refused to visit his son. However, since his son sent him a letter of apology, they have been rebuilding their relationship which is now excellent. His son has learned from his time in custody and will now listen to him. Mr Nono’s mother, in her evidence, confirmed that her son has changed and has become a more responsible person, speaking regularly with the family, including to his brothers and advising them on their conduct.
In cross-examination, Mr Nono acknowledged that in his past misconduct and use of alcohol and drugs, he has been a bad role model for his younger siblings. However, for the future he wants to set them a good example: to show them someone who has struggled to find himself but has then taken responsibility for his conduct and has taken action to make himself a better person. He does not want his younger brothers to get into trouble as he did. He now talks regularly to his 18 year old brother about this, counselling him to stop drinking and going to parties all the time, and make something of himself. At one point his brother left home but, after speaking with Mr Nono, he returned home and has remained there since.
Mr Nono said he will not be tempted to go back to his old ways. He has thought about what he did in the robbery a thousand times and about the effect it had on the pizza delivery driver. He is no longer friends with his co-offender and does not know here he lives. Mr Nono said that, if released into the community, he will attend Hillsong Church with his family. Richard Feeney, the State Executive Director of the Prison Fellowship of the Hillsong Church, provided the Tribunal with a letter dated 27 April 2012 proposing that if Mr Nono is released into the community, the Prison Fellowship will provide supervision and ongoing mentoring for him for a period of 24 months. Mr Feeney said he has known the Nono family since the children arrived in Australia in November 2007 and is aware of Mr Nono’s incarceration and the possibility of his being sent back to New Zealand. At the hearing, Mr Nono said Mr Feeney has been to their family home on several occasions, and has discussed with Mr Feeney “giving back to the community” and the proposed 24 month mentoring program.
The Tribunal has been provided with a letter from the Sudanese Acholi community in Sydney to which the Nono family belong, and in which both Mr Nono’s parents play prominent roles, and also a letter from the wider Australian Sudanese community to which the Acholi community belongs both offering their support. Mr Nono’s father said that traditionally in Sudanese society, the father is an authority figure in the family which does what he says. Living in Sydney is quite different. As a result, quite a few young people in the Sudanese community have got into trouble. Mr Nono’s extended family have provided a letter referring to a plan that has been devised to counsel Mr Nono and then promote him as an example for other young people.
The Tribunal has also been provided with a copy of the NSW State Parole Authority’s order authorising Mr Nono’s release from prison on 3 May 2012, and dated 27 April 2012. The terms of Mr Nono’s parole, which have effect until 3 May 2015, include a long list of conditions with which he must comply. Of particular significance are conditions requiring that he “must totally abstain from alcohol”, “must not use, or be in possession of, a prohibited drug or substance”, and is subject to random testing for drug and/or alcohol use. The address approved at which Mr Nono must reside is that of his parents.
Mr Nono told the Tribunal of his plans for the future: to get a job and help support his family and to again become involved in sport at which he excelled, including athletics and, in Australia, rugby league. He hopes initially to get a job with Freedom Furniture, for whom he has worked before, where his mother currently works as a process worker, and which has said it will employ him if it has a position available, for example, undertaking carpentry or fork lift work. During this time, he will live at home with his family. Later on, he would like to work in the mines with a view to helping his family financially with the purchase of a house.
The Tribunal was impressed with the above evidence which supports the view that Mr Nono has undergone rehabilitation and attests to the support he will receive in the Australian community. We are satisfied that notwithstanding the seriousness of Mr Nono’s conviction for robbery, the risk of his re-offending is minimal and he poses very little risk to the Australian community.
WHETHER HE WAS A MINOR WHEN HE BEGAN LIVING IN AUSTRALIA
The second primary consideration relevant in Mr Nono’s case relates to his being a minor when he first commenced residence in Australia. Direction 41, paragraph 10.2(1) states:
If the person was a minor when they began living in Australia and spent their formative years in Australia, thereby increasing the likelihood of establishment of greater ties and linkages to the Australian community, this is to be given favourable consideration.
Direction 41, paragraph 10.2(2) then states:
Less weight should be given if the person began living in Australia as a minor but was close to attaining adulthood at that time.
Note: For example, if the person was between 17 and 18 years old on arrival.
Mr Nono was aged 17 when he first began living in Australia. The family came to Australia after the factory where his father worked in New Zealand closed, and his father found employment in Australia. One of the reasons for the family wishing to remain in Australia is the much larger Sudanese community living in Australia than that in New Zealand and particularly in Sydney. In addition to the Sudanese community, all Mr Nono’s immediate family and some other extended family members live in Australia. These are people with whom, culturally, Mr Nono has strong ties.
In the Tribunal’s view, this consideration favours Mr Nono’s visa not being cancelled. However, because he came to Australia close to attaining adulthood, it should attract less weight in the particular circumstances of this case.
LENGTH OF TIME ORDINARILY RESIDENT
The third primary consideration relevant in Mr Nono’s case – the length of time he has been ordinarily resident in Australia – is further explained in paragraph 10.3(1) of Direction 41. This states that “more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character”.
Mr Nono has been resident in Australia for four and a half years, of which he has spent the past two years and three months in prison. He was first convicted of an offence on 7 January 2009, when he had been here for 13 months, and he committed the serious offence of robbery when he had been in Australia for a year and 10 months. In Rosson v Minister of Immigration and Citizenship (2010) 191 FCR 390, at 396, Rares J said that such a history should be considered an unfavourable matter in weighing a person’s entitlement to a visa.
BEST INTERESTS OF THE CHILDREN
Direction 41, paragraph 10.4.1(4) states: “Under Australian law, it is generally presumed that a child’s best interests will be served if the child remains with its parents”. In Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 (Wan), the Full Federal Court said, at 142:
Provided that the Tribunal did not treat any other consideration as inherently more significant than the best interests of Mr Wan's children, it was entitled to conclude, after a proper consideration of the evidence and other material before it, that the strength of other considerations outweighed the best interests of the children. However, it was required to identify what the best interests of Mr Wan's children required with respect to the exercise of its discretion and then to assess whether the strength of any other consideration, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration.
Direction 41 sets out a number of factors to be considered in ascertaining the best interests of the child. These include, relevantly: the nature of the relationship between the child and the person; the duration of the relationship including the number and length of any separations and the reasons for those separations; the extent to which the person is likely to play a full parental role in relation to the child; the child’s age, citizenship and relationships with others in a parental role; the likely effect that any separation from the person would have on the child; the impact of the person’s prior conduct on the child; any known wishes expressed by the child; the circumstances of the probable country of future residence; and any language and cultural barriers there for the child.
Mr Nono does not have any children in Australia. He is, however, one of seven siblings of whom five are younger, including children aged 16, 14 and 3. The evidence before the Tribunal indicates that he has a close relationship with his 16 year old brother and his 14 year old sister, and both have provided supportive statements. As mentioned above, he has acted as a counsellor for his 18 year old brother in relation to that brother’s behaviour and this appears to have been instrumental in his brother returning home. With regard to Mr Nono’s youngest brother, aged 3, because of his young age and because Mr Nono has been in prison two years and three months in the past three years, there has been no real opportunity to establish a meaningful relationship between them.
The Tribunal accepts that this is a close family and, given the emotional trauma of the family’s moving from Kenya to New Zealand and then to Australia, it is likely that the separation of the younger siblings from their brother will cause emotional distress. We are satisfied that it is in the best interests of the younger children that Mr Nono’s visa should not be cancelled although, because Mr Nono is not in a parental relationship with them, this consideration should not attract as much weight as might otherwise be the case.
OTHER CONSIDERATIONS
As noted above, Direction 41 states that ‘other’ considerations, where relevant, must be taken into account but, generally, should be given less weight than ‘primary’ considerations. Relevant ‘other’ considerations in Mr Nono’s case specifically referred to in the Direction are his family ties and the nature and extent of his relationships with those in the Australian community, his age, his health, his links with New Zealand, the hardship that may be experienced by both Mr Nono and his immediate family members in Australia, and whether he has been formally advised in the past that his visa might be cancelled because of his criminal conduct.
As noted above, Mr Nono is the second of seven siblings. His immediate family – his parents and siblings – all live in Australia as do some members of his extended family. Because of their background and culture, the family have strong ties. In Sudanese culture, the family and the community have a more important cohesive role and a more important focus than in many ‘Western’ countries. We accept the evidence of Mr Nono’s father that they no longer have any family or friends in New Zealand to whom Mr Nono could turn for support, most of their friends in New Zealand having also moved to Australia.
The Tribunal is satisfied from the family’s and Mr Nono’s evidence that for him to return to New Zealand would cause all of them emotional hardship and leave Mr Nono isolated without the support of family or friends. The evidence indicates that because of the family’s background – fleeing Sudan via Uganda to Kenya, where they spent five years in a refugee camp before being accepted for migration to New Zealand – they are particularly vulnerable to separation and to threats to the family’s unity. Mr Nono’s father said that once he and his family had left Kenya and had arrived safely in New Zealand, he did not want to revisit the awful experiences they suffered in Africa - escaping on foot through the bush, avoiding kidnapping, and dealing with bandits and robbery before making it to safety. Mr Nono’s father said he never talks about these experiences with anyone. Having a family member removed from them will bring back such hurtful memories.
Mr Nono’s parents’ evidence also indicates that if Mr Nono is returned to New Zealand, the mother may return to New Zealand with the youngest child, in order to provide support for Mr Nono. This has caused dissension between Mr Nono’s parents, with his father seeing this as splitting the family, because the other siblings are either still at school in Australia or committed to remaining here, and his father does not want to disrupt their lives. Moreover, if Mr Nono’s mother were to return to New Zealand, this would be without the support the family received when they first arrived there as refugees.
Mr Nono’s father said that without his wife here, it would be difficult to keep the household together. He would be unable to continue working as a bus driver doing shift work because he would need to stay at home to care for the younger children. He said this would have significant adverse consequences for the family’s financial situation.
The Tribunal accepts that for Mr Nono to return to New Zealand is likely to cause financial hardship both to him and to his family. Nevertheless, we note that Mr Nono is young, in good health and has made considerable efforts to undertake educational programs open to him. The initiative he has shown in recent years indicates that he is likely to be able to find employment.
The Tribunal also notes that Mr Nono came to Australia from New Zealand as a result of threats from the Mongrel Mob gang. The gang have not pursued those threats in Australia and, while Mr Nono’s return to New Zealand could provoke further adverse attention to him from the Mongrel Mob, unless he returns to live in the same location, the risk to Mr Nono seems minimal.
Finally, we note Mr Nono has not been formally advised in the past that he might be liable to deportation if he commits any further misconduct. He told the Tribunal that he had not been aware that he could be deported until he received the Department’s ‘Notice of Intention to Consider Cancellation’ letter dated 21 September 2011.
The Tribunal is satisfied that the above ‘considerations’, especially Mr Nono’s family ties, and the hardship that would be caused to him and his family if he were to be returned to New Zealand, favour his visa not being cancelled.
CONCLUSION
Often in these cases, it is the need for the protection of the Australian community which, among the primary considerations, proves to be of particular significance. In Mr Nono’s case, the Tribunal finds that he poses only a minimal threat to the protection of the Australian community. In our view, neither the fact that he was a minor, albeit close to attaining adulthood, nor the fact of his engaging in criminal activity within a relatively short time of arrival in Australia, should attract significant weight. While the interests of Mr Nono’s younger siblings are best served by his remaining in Australia, he is not in a parental relationship with them and has no children of his own. However, the family’s background as refugees, their strong family ties and sense of community should also be taken into account. The impact of Mr Nono being returned to New Zealand, a country where they have no family or friends, will be especially traumatic not only for Mr Nono but also for all his family, including his younger siblings.
Weighing up both the primary and the other considerations, the Tribunal finds there are strong grounds for not cancelling Mr Nono’s visa.
DECISION
The decision under review is set aside and a decision substituted that Mr Nono’s visa not be cancelled.
I certify that the preceding 59 (fifty nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President R P Handley.
...........[sgd].............................................................
Associate
Dated 28 May 2012
Date of hearing 10 May 2012 Date final submissions received 10 May 2012 Counsel for the Applicant
Solicitors for the Applicant
Solicitors for the Respondent
Mr R Jefferis
Legal Aid Commission
DLA Piper
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