Marouna Williams and Minister for Immigration and Border Protection

[2013] AATA 923

[2013] AATA 923

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/5004
Re	Marouna Williams
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	20 December 2013
Place	Melbourne

The reviewable decision, being the decision of the Minister for Immigration and Citizenship made 15 October 2012 to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is affirmed.

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

Deputy President J W Constance

CATCHWORDS

CITIZENSHIP AND IMMIGRATION – visa cancellation under s 501 Migration Act 1958 (Cth) – character test – Direction [no. 55] – substantial criminal record – protection of Australian community from criminal or other serious conduct – nature and seriousness of the conduct – risk to the Australian community should the conduct be repeated – likelihood of engaging in further criminal or other serious conduct - strength, duration and nature of ties to Australia – whether risk of future harm acceptable - decision under review affirmed.

LEGISLATION

Migration Act 1958 (Cth) ss 499, 500, 501

SECONDARY MATERIALS

Direction no. 55 – Visa refusal and cancellation under s501

REASONS FOR DECISION

Deputy President J W Constance

20 December 2013

1. Mr Williams entered Australia with his parents and siblings in 1998, when he was nine years old.  Since his arrival he has resided continuously in Australia.  Until 15 October 2012 he held a Class TY Subclass 444 Special Category (Temporary) visa.

2. In 2011 Mr Williams was sentenced to terms of imprisonment for three offences, the longest being a term of 36 months for intentionally causing serious injury. In October 2012 the Minister for Immigration and Citizenship cancelled Mr William’s visa as he suspected that he did not pass the character test set out in section 501 of the Migration Act 1958 (Cth) and as Mr Williams did not satisfy him that he did pass the test.

3. Mr Williams has applied to the Tribunal to review the Minister’s decision.

4. For the reasons which follow, the decision of the Minister will be affirmed.

   FACTUAL BACKGROUND

5. Unless otherwise stated the following findings of fact are based on the evidence of Mr Williams.

6. Mr Williams was born in New Zealand and is a citizen of that country.  He spent most of his early childhood living in the Cook Islands.  He has no recollection of living in New Zealand.  In 1998, when he was nine years old he migrated to Australia with his parents and his five siblings.  He is the youngest of the family.

7. Mr Williams attended school in Australia. He left school after completing year 10 and commenced employment.  From that time until he was sentenced to imprisonment in August 2011 he worked in several trades.  At the time of his sentencing he was employed as a concreter.  Mr Williams displayed a strong work ethic and apparently had no difficulty in obtaining employment.

   History of offending

8. Mr Williams appeared before the Children’s Court on several occasions between June 2004 and January 2008.  Those occasions when he appeared in relation to incidents involving physical violence or burglary were as follows:

   ·June 2004: charge of burglary, motor vehicle and driving offences; charges proven, no conviction recorded, four months probation;

   ·February 2005: charge of recklessly causing serious injury, charge proven, no conviction recorded, good behaviour bond for 12 months;

   ·April 2006: conviction on two counts of affray, two counts of intentionally causing serious injury, and one count of recklessly causing serious injury; sentence of six months detention; these offences were committed in company with two cousins;

   ·March 2007: charge of intentionally causing serious injury proven, no conviction recorded, probation order for six months.

9. On 1 December 2008 Mr Williams was charged with drink driving and driving whilst disqualified.  The charges were found proven.  Without entering a conviction the Court placed Mr Williams on a Community Based Order and required to do 12 months community work.  He was disqualified from driving for 13 months.

10. On 16 August 2011 Mr Williams was convicted in the Melbourne County Court of the following offences, which were committed in October 2008 when Mr Williams was 19 years old:

    ·intentionally causing serious injury;

    ·recklessly causing serious injury;

    ·common law assault;

    ·theft;

    ·aggravated burglary when a person was present.

    Some of these offences were committed in company with Mr Williams' older brother, Joshua Williams, and two cousins.

11. Counsel for the Minister has concisely summarised the circumstances of the offences and I adopt that summary[1]. Mr Williams was involved in the following actions directed against persons previously unknown to him:

    1  Throwing a punch through a car window at a stranger, giving rise to the charge of common assault;

    2Punching another stranger in the street for no apparent reason, which was subsequently found to have broken the man’s jaw in two places, requiring the insertion of three plates and 12 screws, giving rise to the recklessly causing serious injury charge;

    3Entering an occupied house with the intention to steal, giving rise to the aggravated burglary charge;

    4Severely assaulting one of the house occupants, a complete stranger, an assault that “was absolutely gratuitous on a totally defenceless person who would have been clearly terrified”. When the victim fell to the floor “you continued to kick him to the head and face several times. You also stomped on his face, leaving a shoe impression”.

    5This severe assault gave rise to the charge of intentionally causing serious injury, with the victim suffering the following injuries that required hospitalisation: unconsciousness, nasal lacerations, broken rib, broken eye socket, extensive bruising and post traumatic amnesia.

    [References omitted]

    [1] Statement of Facts and Contentions para.16; the summary accurately records facts stated by His Honour Judge Smallwood in his sentencing remarks; see Exhibit AA1, G Documents at pp.32-36.

12. At least one of the persons assaulted by Mr Williams lived in the house which was burgled.  The offences of common assault and recklessly causing serious injury were committed outside a house occupied by one of the victims.  Sometime after committing these offences Mr Williams, his brother, one of the cousins and another male returned to the house where the aggravated burglary, theft and intentionally causing serious injury were committed.  In relation to the assault which took place inside the house the Court observed that “[w]hy you did it is beyond me and it is hard to escape the conclusion you did it for fun.”[2]

    [2] Exhibit AA1 G Document, p.37.

13. Mr Williams was sentenced to imprisonment for 43 months with a minimum non-parole period of 15 months.

14. In December 2011 Mr Williams was convicted of the following offences:

    (i)drive at a dangerous speed;

    (ii)refuse to undergo breath test;

    (iii)refuse to remain at station for breath test;

    (iv)drink driving;

    (v)theft of a motor vehicle;

    (vi)burglary;

    (vii)theft;

    (viii)unlicensed driving (two counts);

    (ix)breach of Community Based Order imposed on 1 December 2008;

    (x)failure to answer bail;

    (xi)driving while disqualified.[3]

    These offences were committed between July 2008 and April 2010.

    [3] Exhibit AA1, Further Supplementary G Documents pp.79-93.

15. Mr Williams was sentenced to terms of imprisonment of slightly in excess of 27 months, to be served concurrently with the sentences imposed in August 2011.

16. Mr Williams was released from prison on parole on 15 November 2012 and was immediately taken into immigration detention.  He has remained in immigration detention since that time. 

17. I will refer to further findings of fact in considering particular issues in these reasons.

    THE RELEVANT LEGISLATION

18. Subsection 501(2) of the Migration Act 1958 (Cth) provides:

    (2)     The Minister may cancel a visa that has been granted to a person if:

    (a)the Minister reasonably suspects that the person does not pass the character test; and

    (b)the person does not satisfy the Minister that the person passes the character test.

19. Subsection 501(6) paragraph (a) provides:

    (6)     For the purposes of this section, a person does not pass the character test if:

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

20. Subsection 501(7) paragraph (c) provides:

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

    …

    (c)the person has been sentenced to a term of imprisonment of 12 months or more;

21. The power of the Tribunal to review the decision to cancel Mr Williams’ 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 [55] which commenced on 1 September 2012.

    THE CHARACTER TEST

22. As Mr Williams was sentenced to imprisonment for 43 months he has a “substantial criminal record” in accordance with subsection 501(7) of the Act.  As a result, in accordance with subsection 501(6) he does not pass the character test and I must consider whether the Tribunal should exercise the discretion to cancel his visa.

    DIRECTION NO.55

23. 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 A where relevant, in order to determine whether Mr Williams will forfeit the privilege of continuing to hold a visa.  In so doing I am required to determine whether the risk of future harm by Mr Williams is unacceptable.

24. Under the heading General Guidance, Direction No.55 provides in part:

    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.

25. In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion to cancel a visa should be approached.  The principles include the following:

    (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)   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.

26. The Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case.[4]  Primary considerations should generally be given greater weight than the other considerations.[5]

    [4] Direction 55, paragraphs 6.2(3) and 8(1).

    [5] Direction 55, paragraph 8(4).

27. Paragraph 9(1) provides:

    In deciding whether to cancel a person’s visa, the following are primary considerations:

    a)Protection of the Australian community from criminal or other serious conduct;

    b)The strength, duration and nature of the person’s ties to Australia;

    c)The best interests of minor children in Australia;

    d)Whether Australia has international non-refoulement obligations to the person.

    REASONING

    A.        PRIMARY CONSIDERATION (a) – PROTECTION OF THE           AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS       CONDUCT

28. I note that I must have regard to matters set out in paragraph 9.1 being:

    ·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;

    ·the nature and seriousness of the person’s conduct to date;

    ·the risk to the Australian community should the person commit further offences or engage in other serious conduct[6].

    [6] ‘Serious conduct’ is defined in Annex B to the Direction to include conduct which may not constitute a criminal offence.

    A.1      The nature and seriousness of the Applicant's conduct to date

29. Mr Williams' conduct to date has been extremely serious.  Since the end of 2004 he has had six charges of inflicting serious injury found proven against him.  I have already described briefly the circumstances of the offences in respect of which he was last imprisoned. Mr Williams was 19 years old at the time he committed those offences.

30. When Mr Williams was 15 years old, in company with the two cousins who were his co-offenders in the offences for which he was imprisoned, he attacked two passengers on a train.  When he gave evidence before me Mr Williams said that the victims had done nothing wrong and that there was no reason for the attack.  He said that he punched and kicked one victim who was hospitalised and remained in a coma for “a few months.” During this time Mr Williams was uncertain whether his victim would die and he would be charged with murder.

31. Mr Williams' repeated acts of extreme violence and the brutality of the unprovoked nature of the attacks make the nature of his conduct of particular concern.  The principles by which I am to be informed in making my decision indicate that Mr Williams should expect to forfeit his right to remain in Australia.

32. In addition to the offences involving physical violence, between July 2008 and April 2010, Mr Williams committed a number of offences involving dishonesty and illegal use of motor vehicles including an offence of breaching a Community Based Order.  This conduct shows a disregard of this country’s legal system.

    A.2      The risk to the Australian community should the person commit further offences or engage in other serious conduct

33. Paragraph 9.1.2(1) provides guidance in considering  the risk to the Australian community and requires the Tribunal to have regard to, cumulatively:

    a)The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and

    b)The likelihood of the person engaging in further criminal or other serious conduct, taking into account:

    i.     information and evidence on the risk of the person re-offending; and

    ii.    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

    A.2.1   The nature of the harm to individuals or the Australian community should the Applicant commit further offences or engage in other serious conduct

34. The nature of the harm to the Australian community should the Applicant engage in further criminal and/or serious conduct of the nature of that in which he has engaged in the past, would be extremely serious. A repetition of the offences involving violence would cause very serious physical harm to, and possibly death of, the victims.

35. A repetition of offences such as burglary and stealing would cause feelings of insecurity in the communities in which offences were committed.  Those the subject of burglary would feel the violation associated with home invasion. 

    A.2.2   The likelihood of the Applicant engaging in further criminal or other serious conduct

    The evidence of Mr Williams

36. Mr Williams said that he deeply regrets his actions and the pain he has caused to members of the Australian community and to his family.  He is determined not to re-offend.  The courses he has undertaken in prison have prepared him for release into the community by helping him identify high risk situations and how to avoid them.  He has not consumed any illegal drugs or alcohol since his imprisonment.  He last offended in April 2010 when he stole a motor vehicle.

37. Should he be released into the community, Mr Williams intends to live with the family of a family friend, Ms Rexter.  His former employer has offered to re-employ him. 

38. Mr Williams will seek the support of his family to ensure that he does not re-offend.  He describes his relationship with his family as “very close.”[7]  He acknowledges that his brother, Joshua Williams, was one of his co-offenders, but he says that his brother is now married with a young family and has not offended since the offences for which he was convicted.  Mr Williams (the Applicant) sees his brother as a role model who has shown him how he can change his life should he have the opportunity to do so.

    [7] Exhibit AA2 para.1.

39. In early 2010 Mr Williams formed a de facto relationship with Ms Taruia. This relationship ended this year, although they remain friends.  Mr Williams says that Ms Taruia visited him in prison and has been a positive influence on him and helped him in his rehabilitation.

    The sentencing remarks of Smallwood J. in the County Court

    1.When sentencing Mr Williams in August 2011 in respect of the serious incidents of violence and burglary, His Honour Justice Smallwood said, in part:

    I accept … that your plea of guilty is accompanied by appropriate remorse and that you understand that what you did was wrong.  I accept, on the material before me, that your alcohol consumption has been reduced, though apparently it did become heavier after your parents had gone overseas.  You seem to have had a lot of difficulty adjusting to that.

    I accept, on the basis of that report and also on the evidence from your mother and from your employer, that you have made a significant attempt to turn your life around.  To your credit, since this has occurred, you found employment and you are working long hours.  There is little to suggest a general anti-social disposition and you have now been in a relationship for 12 months or so, which would seem to have calmed your situation down.[8]

    The evidence of Mr Simmons, Psychologist

    [8] Exhibit AA1 p.40.

40. Mr Simmons interviewed Mr Williams in August 2011 and October 2013 and provided reports dated 9 August 2011[9] and 23 October 2013[10]  He gave evidence.

    [9] Exhibit AA4.

    [10] Exhibit AA6.

41. Mr Williams began abusing alcohol at age 14 and using illegal drugs at 17.  There was no history of mental health problems or treatment.

42. In August 2011 Mr Simmons reported, in part:

    Mr Williams did not try to minimise his behaviour and accepted what he had done was inappropriate and wrong.  He had empathy for the victim and was certainly remorseful, to the degree that he was able to explain what he meant by remorse in a manner that was certainly more than just regret and rather recognised the inherent wrongful loss of his actions.  There was little to suggest that Mr Williams has a general antisocial disposition, although it was felt that there may have been some acting out commencing in his early teen years as result of undergoing major heart surgery in Grade 6 at school.  There was not a pattern of more pervasive offending often seen in those with antisocial personality disorders and Mr Williams appears to have attempted to make significant changes in his life at the present time.[11]

    [11] Exhibit AA4 p.5.

43. Mr Simmons reported further that at the date of his second interview Mr Williams had reduced his levels of intake of alcohol and appeared to have benefitted from the courses he had undertaken in prison. 

1. In the opinion of Mr Simmons there are several dynamic factors that decrease offending in males and which are applicable to Mr Williams.  These are:

   ·increasing age;

   ·a long term relationship with a female who is not an offender;

   ·stable accommodation and employment.

   When he gave evidence Mr Simmons added Mr Williams' reduction in alcohol consumption and the supervision of the Parole Board (should he be released into the community) as additional dynamic factors which would reduce the risk of his re-offending.

2. Mr Simmons acknowledged that testing of Mr Williams using the Violence Risk Appraisal Guide (VRAG) placed him in the middle of the medium risk of re-offending range.  In his opinion this is a more reliable indicator of risk than the Victorian Intervention Screening Assessment Tool (VISAT), by which Mr Williams was assessed in August 2011 and October 2011.  That testing had indicated that Mr Williams' risk of re-offending was high.

3. In his report dated 23 October 2013 Mr Simmons concluded:

   With regard to Mr Williams, given the information outlined above, while Mr Williams was found to have a moderate level of risk on the VRAG, the dynamic factors suggest that his level of risk is in fact lower than this if he were to be released into the community at the present time.  It is acknowledged that his level of risk may further increase or decrease over time, but that will depend on future events in his life that cannot be identified at this point in time.[12]

   [12] Exhibit AA6 p.4.

4. In giving evidence Mr Simmons said that the most important factor to minimise the risk of Mr Williams' re-offending is his abstaining from consuming alcohol and illegal drugs.  His proposal is that he live with a family friend. The support of his family and the supervision on parole are also important.

   Courses undertaken in prison

5. Mr Williams undertook several training programs while he was in prison, including a semi-intensive drug and alcohol rehabilitation program.[13]  The major program designed to reduce the risk of his reoffending was Making Choices for Men which he undertook in 2012.

   [13] Exhibit AA23.

6. This program consisted of 40 sessions over a period of 4 months.  Mr Williams said that from this program he learned:

   ·to accept responsibility for what he had done;

   ·the effect of his offending on his family;

   ·the need for balance in his life;

   ·the need to avoid the negative influences of others.

7. At the completion of the program the Senior Clinician reported in part:

   Mr Williams primary motivation for participation in the Making Choices Program appeared to be to increase his chances of obtaining parole on his earliest eligible release date.  Although he stated early in the program that he was also motivated towards making positive lifestyle changes, during initial group sessions, his behaviours were incongruent with this. …  It became apparent that much of Mr William’s passivity due to anxiety and low self-esteem rather than resistance towards engagement in the program. …  However, despite this passivity, his contributions suggested that he had been attentive and such were generally relevant to the topic being discussed.

   …

   Risk

   Based on actuarial, psychometric and clinical assessment information known at this time, Mr Williams will need to specifically address a number of variables to manage his risk of reoffending.  Dynamic (changeable) risk factors can increase or decrease risk, depending on how well they are managed.

   Based on post-treatment VRS scores, the following factors remain treatment targets for Mr Williams:

   oWork Ethic

   oCriminal Peers

   oSubstance Abuse

   oViolence Cycle

   oImpulsivity

   oSecurity Level of Release Institution.[14]

   [14] Exhibit AA1 pp.36-40.

8. In the report of the assessment of Mr Williams in October 2012[15] using the Victorian Intervention Screening Assessment Tool, it was stated in part:

   Mr Williams has successfully completed the Making Choices Program whilst in custody.  The writer has confirmed that this is the program now offered to violent offenders in place of the Moderate VIP at Marngoneet Correctional Centre.  Of concern is Sentence Management Unit comments dated 27/4/2012 which indicate that Mr Williams had made minimal contributions to the program to date.  He was provided with a final warning and advised that if his participation did not increase that he would be removed from the program.

   Mr Williams displayed insight into his violent offending, suggesting that his risks include alcohol use and negative peer association.  He suggested that in order to mitigate these risks he would engage in Drug and Alcohol Counselling, abstain from alcohol and refrain from association with criminal peers.  Whilst Mr Williams’ motivation to engage in a positive lifestyle is appreciated he remains in contact with his brother (co-offender) and may be working with his two cousins (co-offenders).[16]

   The evidence of Mr Joshua Williams

   [15] Exhibit AA27.

   [16] Exhibit AA27 p.2.

9. Mr Joshua Williams, the Applicant’s brother, provided statements dated 7 December 2012 and 9 October 2013 respectively[17] and gave evidence.  He is an older brother of Mr Williams.  He was a co-offender with Mr Williams in relation to the events of October 2008.

   [17] Exhibits AA7 and AA8.

10. It is the view of Mr Joshua Williams that his brother has matured over the last four years and that he is remorseful of his past misconduct.  Mr Williams attributes his brother’s change to his Christian faith, his relationship with his partner, his stable employment and his imprisonment and detention.

    Evidence of Mr Tamatoa Williams

11. Mr Tamatoa Williams is a brother of Mr Williams and is seven years his senior.  He has provided a statement dated 8 January 2013[18] and gave evidence.

    [18] Exhibit AA9.

12. Mr Tamatoa Williams lives in north western Victoria with his family.  He is prepared to offer accommodation and financial and social support to Mr Williams if it is needed.

    Evidence of Mrs Rexter

13. Mrs Rexter is a friend of the Williams family, including Mr Williams' parents. 

14. Mrs Rexter has offered Mr Williams accommodation in her family home in Melbourne for as long as he needs it.  Mr Williams would be sharing the home with Mrs Rexter, her husband and their two sons.  Mrs Rexter’s family have discussed this proposal and agree with it.

    Statement of Reverend Abela Williams[19]

    [19] Exhibit AA12.

15. Reverend Williams is the father of Mr Williams.  Since 2007 he and his wife have lived in New Zealand having been posted there by their Church.  They are Australian citizens and plan to return to live in Australia at the end of 2015.

16. Mr Williams (the Applicant) does not know life in New Zealand as he was only two years old when he left that country.  The only immediate family other than his parents residing in New Zealand is his youngest sister.

17. Mr Williams’ parents and sister live in Hastings.  Should Mr Williams be required to return to New Zealand his parents and sister will be unable to return to Australia at the end of Reverend Williams’ posting and will have to find alternative accommodation to that provided by the Church.

18. In the opinion of Reverend Williams, Mr Williams deeply regrets the crimes he has committed  and has changed his life.

    Statement of Ms Sisilia Teiti[20]

    [20] Exhibit AA11.

19. Ms Teiti is the oldest sibling of Mr Williams.  She resides in Australia.

20. Mr Williams has an extremely strong family network in Australia which will support him should he be able to return to live in the Australian community.

    Parole

21. Mr Williams was released on parole on 15 November 2012.[21]Unless otherwise determined by the Parole Board the order shall remain in force until 15 March 2015.  His release was subject to conditions which require him to remain under the supervision of, and obey lawful instructions of, Corrective Services. As a special condition of his parole he is required to “undergo assessment and treatment for alcohol or drug addiction or submit to medical, psychological or psychiatric assessment and treatment as directed by the Centre Manager.[22]

    [21] Exhibit AA1, p.64.

    [22] Exhibit AA1 p.64.

22. Since his release on parole Mr Williams has been in immigration detention.

    Consideration

23. I accept that Mr Williams is genuine in his intention not to re-offend.  However I have taken into account that he has repeatedly referred to the influence of others on his decisions to engage in criminal activity, notwithstanding his leading role in the most violent of the attacks for which he has been punished.    

24. I accept also that Mr Williams will have support from some family members and friends should he be able to return to live in the Australian community.  In addition to the evidence to which I have already referred I have taken into account all of the statements in support which are in evidence.  However in considering this evidence I have taken into account that there does not appear to have been the same degree of family support during Mr Williams' teenage years.  When his parents were posted to New Zealand in 2007 Mr Williams and two of his brothers remained in the family home.  Mr Williams was later asked to leave the home by one of his brothers and did so.  The family home was subsequently repossessed by reason of the brothers’ failure to make the mortgage repayments.  At about this time Mr Williams began to abuse alcohol.    This causes me to have some reservations as to the likely effectiveness of the support which is now offered.

25. I have given careful consideration to the views expressed by Mr Simmons, who assessed Mr Williams as late as October 2013.  Mr Simmons assessed the risk of Mr Williams' reoffending as moderate, with dynamic factors suggesting that the level of risk was in fact lower.  He was critical of the VISAT testing which indicated the level of risk was high.  However in cross-examination, Mr Simmons agreed that having been made aware of more detail of Mr Williams’ history, his scoring on the VRAG scale placed him in the section of the population  in the moderate to high risk range of re-offending.  I accept that the various scales do not assess an individual’s risk of re-offending.  I do not accept Mr Simmons’ evidence that the risk of Mr Williams' reoffending was in the low-moderate range as he did not have available to him all of the relevant information to make such an assessment. 

26. Having regard to all of the evidence to which I have referred, I have come to the conclusion that there is a reasonable likelihood of Mr Williams will engage in further criminal or other serious conduct involving physical violence.

    B.       PRIMARY CONSIDERATION (b) – THE STRENGTH, DURATION AND            NATURE OF THE PERSON’S TIES TO AUSTRALIA

27. Paragraph 9.2(1) of the Direction provides:

    Reflecting the principles at 6.3, decision-makers must have regard to:

    a)   How long the person has resided in Australia, including whether the person 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 person has spent contributing positively to the Australian community.

    b)   The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

28. Although Mr Williams arrived in Australia as a nine-year old, and has lived here for 15 years, he began offending within six years of his arrival.  Consequently, these factors are of little weight in his favour.  Further, his positive contribution to the Australian community has been limited to a period of employment of about three years.

29. Although various members of the family have expressed support for Mr Williams in these proceedings, I am not satisfied that the ties of Mr Williams to his family are particularly strong or that they should be given more than minimal weight. His parents left Australia when he was sixteen and do not provide any link to this country at present.  Mr Williams plans to live in Melbourne should he be free to do so.  Only one of his siblings would be living in close proximity.

30. Mr Williams does have the support of friends such as Mrs Rexter and Ms Taruia.  He also has the offer of re-employment by his former employer in the concreting industry.  Again, these factors are to be considered as part of Mr Williams' ties to Australia.  However I do not consider them to indicate strong ties.  The de facto relationship between Mr Williams and Ms Taruia has ended.  Mr Williams' employment in Australia has not been long-term.

    C.       PRIMARY CONSIDERATION (c) – BEST INTERESTS OF MINOR          CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

31. This consideration is not relevant in this application.  Mr Williams’ younger sister, who is a minor, is residing in New Zealand with her parents.

    D.       PRIMARY CONSIDERATION (d) – INTERNATIONAL NON-        REFOULEMENT OBLIGATIONS

32. This consideration is not relevant in this application.

    E.       OTHER CONSIDERATIONS AS SET OUT IN THE DIRECTIONS

33. Paragraph 10 of the Direction sets out other considerations which must be taken into account where relevant.  I note that these considerations are generally to be given lesser weight than the relevant primary considerations.

34. The relevant other consideration listed in the Direction are:

    a)  Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;

    …

    c)  Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;

    d) The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    i.     The person’s age and health;

    ii.     Whether there are substantial language or cultural barriers; and

    iii.Any social, medical and/or economic support available to them in that country.[23]

    [23] Direction 55, paragraph 10(1).

35. On the basis of the evidence of Mr Williams' family members and friends I am satisfied that they would be disappointed by he being required to leave Australia.  However there is no evidence to indicate that cancellation of his visa would have any significant impacts, either emotional or financial on any of them.

36. The impact of a decision not to cancel the Applicant's visa on members of the Australian community is a relevant consideration but I do not have evidence to enable me to make a finding in this regard.

37. I am satisfied that Mr Williams will not face significant impediment in establishing himself in New Zealand, particularly as, for at least some time, he will have the assistance of his parents.

38. In his statement dated 6 January 2013[24], Mr Williams' father, Reverend Abela Williams, stated that if Mr Williams is deported he and his wife will remain in New Zealand at the end of his posting and provide accommodation for Mr Williams.  On the basis of the statement of Reverend Williams I am satisfied that Mr Williams has reasonable prospects of obtaining at least seasonal employment in the fruit-growing industry in the area in which his parents are likely to be living.

    [24] Exhibit AA12.

39. Mr Williams is young and enjoys good health.  There are no language or social barriers which he would experience if he was required to return to New Zealand.  As a citizen of that country he will be entitled to such support as is provided by the government.

40. I do not regard the other considerations as being of significance in considering whether Mr Williams' visa should be cancelled.

    F.        THE BALANCING EXERCISE

41. I have reached the conclusion that the consideration which should be given the greatest weight in this application is the need to protect the Australian community from the type of conduct in which Mr Williams has engaged on more than one occasion.  I have regard to the principle that the Government is committed to the protection of the community.  Further, I have taken into account that a person who commits a violent crime should generally expect to forfeit the privilege of staying in Australia.

42. I have determined that Mr Williams' conduct is extremely serious in its nature with the potential of very serious injury or death to others should it be repeated.  I am satisfied that there is a reasonable likelihood that Mr Williams will re-offend.

43. The consideration of Mr Williams' ties to Australia is of lesser importance for the reasons I have stated.  Taking into account the support which his parents will provide to him on his return to New Zealand, the other considerations set out in Direction No. 55 are of minimal weight.

44. Having taken into account all of the relevant considerations I have come to the conclusion that the risk of future harm which would be incurred if Mr Williams was allowed to remain in Australia is unacceptable and he should forfeit the privilege to continue to hold a visa.  

    CONCLUSION

45. The reviewable decision, being the decision of the Minister for Immigration and Citizenship made 15 October 2012 to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa will be affirmed.

I certify that the preceding 88 (eighty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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

Associate

Dated 20 December 2013

Date(s) of hearing	14 and 19 November 2013
Counsel for the Applicant	Mr G Gilbert
Solicitors for the Applicant	Carina Ford Lawyers
Advocate for the Respondent	Mr D Brown
Solicitors for the Respondent	Australian Government Solicitor