Marouna Williams and Minister for Immigration and Citizenship
[2013] AATA 16
[2013] AATA 16
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5004
Re
Marouna Williams
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal G. D. Friedman, Senior Member
Date 16 January 2013 Place Melbourne The Tribunal affirms the decision under review.
..........................[sgd]..............................................
G. D. Friedman, Senior Member
MIGRATION – New Zealand citizen - cancellation of Special Category (Temporary) visa - conviction for causing serious injury and other offences - character test - exercise of discretion
Migration Act 1958 ss 499(1), 499(2A), 501(2), 501(6), 501(7)
Direction [No. 55] – Visa Refusal and Cancellation under s 501
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198
Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
REASONS FOR DECISION
G. D. Friedman, Senior Member
16 January 2013
Marouna Williams is a citizen of New Zealand who was born in 1989 and arrived in Australia with his family on 11 December 1998 on a Class TY Subclass 444 Special Category (Temporary) visa after spending his early childhood in the Cook Islands. He has been living in Australia since then. On 15 October 2012 a delegate of the respondent found that Mr Williams did not pass the character test due to his criminal record in Australia, and decided to exercise the discretion to cancel his visa. Mr Williams seeks review of the decision.
LEGISLATIVE BACKGROUND
Under s 501(2) of the Migration Act 1958 (the Act) the Minister may cancel a visa granted to a person if the Minister reasonably suspects that the person does not pass the character test (s 501(2)(a)) and the person does not satisfy the Minister that the person passes the character test (s 501(2)(b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds in s 501(6)(a)-(d) is met. Section 501(6)(a) of the Act provides:
(a) the person has a substantial criminal record (as defined by subsection (7));
…
Section 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Under s 499(1) of the Act the Minister may give directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply.
On 25 July 2012 the Minister, exercising powers under s 499(1) of the Act, issued Direction [no.55] – Visa Refusal and Cancellation under s 501 (Direction 55) which came into operation on 1 September 2012. The Direction provides guidance to decision-makers in making decisions to refuse or cancel a visa under s 501 of the Act, including the exercise of the discretion to decide whether a non-citizen should be permitted to enter or remain in Australia in circumstances where that person does not pass the character test.
Paragraph 7 of Direction 55 sets out how to exercise the discretion and paragraph 8 requires decision-makers to take into account the primary and other considerations relevant to the individual case. Paragraph 8(4) of Direction 55 states that primary considerations should generally be given greater weight than the other considerations.
ISSUES
The issues before the Tribunal are:
·Does Mr Williams pass the character test? If not:
·How do the primary considerations and other considerations apply to Mr Williams?
·Should the discretion to cancel the visa be exercised?
DOES MR WILLIAMS PASS THE CHARACTER TEST?
Mr Williams has the following criminal history:
COURT DATE OFFENCE COURT RESULT Heidelberg Magistrates’ Court
14 December 2011
Drive at a speed dangerous
Imprisonment 6 months concurrent. Licence Disqualified for 6 months.
Refuse undergo breath test
Imprisonment 4 months concurrent. licence disqualified for 4 years.
Refuse to remain at station for breath test
Drive whilst exceeding prescribed concentration of alcohol
Imprisonment 4 months. Licence disqualified for 20 months.
Theft of a motor vehicle
Imprisonment 4 months concurrent.
Burglary
Imprisonment 3 months concurrent.
Theft
Imprisonment 2 months concurrent.
Breach of a Community Based Order imposed on 01 December 2008
Breach proved. Imprisonment 2 months concurrent.
Drive whilst disqualified
On each charge: Imprisonment 1 month concurrent.
Fail to answer bail granted
Breach of Community Based Order imposed on 01 December 2008
Breach Proven. Imprisonment 1 month concurrent.
Drive whilst disqualified
On each charge: Imprisonment 14 days concurrent.
Unlicensed driving (2 charges)
Failure to comply with community based order
Proved. No further penalty.
Melbourne County Court
16 August 2011
Intentionally cause serious injury
Imprisonment 36 months.
Aggravated Burglary – person present
Imprisonment 15 months. 12 months of sentence to be served concurrently.
Recklessly cause serious injury
Imprisonment 12 months. 9 months of sentence to be served concurrently.
Common law assault
Imprisonment 3 months. 2 months to be served concurrently.
Theft
Imprisonment 1 month concurrent.
Heidelberg Magistrates’ Court
01 December 2008
Exceed prescribed concentration 3 hours breath – drive vehicle
On each charge: without conviction. Community Based Order for 12 months to perform 50 hours. Licence disqualified for 13 months.
Drive whilst disqualified
Heidelberg Children’s Court
25 January 2008
Possess liquor under 18 years
On all charges: Without Conviction. Fined $300.
Consume liquor under 18 years
Resist police
Melbourne Children’s Court
05 March 2007
Intentionally cause injury
On both charges: without conviction. Probation order for 6 months.
State false name when requested
Melbourne Children’s Court
27 April 2006
Affray (2 charges)
On all charges: Convicted. Detention in youth training centre for 6 months.
Intentionally cause serious injury (2 charges)
Recklessly cause serious injury
Melbourne Children’s Court
07 February 2005
Recklessly cause serious injury
Without conviction. Adjourned on bond $250 to be of good behaviour for 12 months. Pay $250 to court fund.
Heidelberg Children’s Court
25 June 2004
Theft of a motor vehicle (2 charges)
On all charges: Without conviction. Probation order for 4 months. Pay compensation $250.
Unlicensed driving (4 charges)
Fail give way at a stop sign or line
Fail to render assistance after accident
Fail give name/address – property damaged
Theft from Motor Vehicle
Burglary
Theft
Mr Williams is currently in immigration detention having served his sentence of imprisonment. He conceded, and the Tribunal finds, that he does not pass the character test.
HOW DO THE PRIMARY AND SECONDARY CONSIDERATIONS APPLY TO MR WILLIAMS?
Assessment of primary considerations
The four primary considerations are set out in paragraph 9(1) of Direction 55:
(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; and
(d) Whether Australia has international non-refoulement obligations to the person.
(a) Protection of the Australian community from criminal or other serious conduct
Paragraph 9.1(1) of Direction 55 states that, when considering the protection of the Australian community, decision-makers should have regard to the principle that:
... the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 9.1(2) states that decision-makers should also give consideration to:
a) The nature and seriousness of the person’s conduct to date; and
b) The risk to the Australian community should the person commit further offences or engage in other serious conduct.
a) The nature and seriousness of Mr Williams’s conduct
Paragraph 9.1.1(1) of Direction 55 lists a number of factors that must be taken into account in considering the nature and seriousness of the criminal offending or other conduct to date:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously.
In his sentencing remarks in the County Court of Victoria on 16 August 2011 the judge noted that in October 2008 Mr Williams, an older brother and two cousins had been drinking when Mr Williams punched one of the victims through a car window for no apparent reason. He violently assaulted another stranger in the street, leaving the victim terrified and seriously injured. He also entered the house belonging to another of the victims with the intention of stealing items from the house. The judge described the offences as …serious and, in particular, the intentionally causing serious injury, in my view, is a very serious example of it. The judge said that one of the assaults was …absolutely gratuitous on a totally defenceless person…The judge referred to prior convictions involving violence and causing serious injury, resulting in a sentence of six months in a Youth Training Centre. The judge took into account a plea of guilty on all charges and noted that Mr Williams had reduced his alcohol consumption, had a stable employment record and had not re-offended for three years (although in fact Mr Williams had committed further offences in April 2010).
Mr Williams told the Tribunal that the offences occurred while he was intoxicated. He admitted that the injuries he inflicted were serious and two of the victims had lost consciousness. He had kicked one of the victims who was lying on the ground, breaking the person’s jaw in three places.
The judge’s remarks were made before Mr Williams appeared in the Heidelberg Magistrates’ Court on 14 December 2011 on a number of charges including traffic and driving matters, theft, burglary, breach of a Community-Based Order and failure to answer bail. He was sentenced to 27 months’ imprisonment, to be served concurrently with the sentence imposed in the County Court. He was released from prison on 12 November 2012 and was placed in immigration detention when his visa was cancelled.
b) The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
The most serious of Mr Williams’s crimes were committed against vulnerable members of the community, as the offences were unprovoked attacks on innocent members of the community.
c) Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
All of Mr Williams's crimes were committed before he was placed in immigration detention.
d) The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s501(6)(b) or (d), or is not of good character under s501(6)(c) is considered to be serious;
The conduct by Mr Williams in committing the crimes was serious.
e) The sentence imposed by the courts for a crime or crime;
In respect of the most serious offences Mr Williams was sentenced on 16 August 2011 to imprisonment for 43 months with a minimum of 15 months.
f) The frequency of the person's offending and whether there is any trend of increasing seriousness;
Mr Williams commenced offending at the age of 14 years, which was about five years after his arrival in Australia, and he appeared in Court in each of the following four years on a range of charges including violence, driving offences and theft.
g) The cumulative effect of repeated offending;
Mr Williams’s latest court appearance in December 2011 continued a pattern of driving offences and breaches of previous orders and resulted in a term of imprisonment.
h) Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
There is no material to suggest that Mr Williams provided false or misleading information to the Department.
i) Whether the person has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the person’s migration status (noting that the absence of a warning could not be considered to be in the person's favour);
There is no record that Mr Williams has reoffended after receiving a formal warning from immigration authorities.
j) Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
All of Mr Williams's offences were committed in Australia.
Conclusion regarding the seriousness of the offences
The Tribunal concludes that the offences are very serious.
b) The risk to the Australian community should Mr Williams commit further offences or engage in other serious conduct
Paragraph 9.1.2 of Direction 55 states:
(1) In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. In making this assessment, decision-makers must 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;
Taking into account the nature of the prior convictions for offences involving violence and traffic matters, there would be significant harm to individuals or the Australian community should Mr Williams engage in further criminal or serious conduct.
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 reoffending; 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).
On 16 August 2011 the sentencing judge referred to a report from a forensic psychologist who outlined a history of Mr Williams's family originating from the Cook Islands and that his parents had returned to New Zealand about the time of the offending which led to the more serious charges. In his sentencing remarks the judge noted that Mr Williams’s plea of guilty was accompanied by appropriate remorse and that Mr Williams understood that what he did was wrong. The judge also stated that Mr Williams had made a significant attempt to turn his life around and that he had a good work ethic.
A report by Corrections Victoria dated 26 August 2011 using the Victorian Intervention Screening Assessment Tool (VISAT) concluded that Mr Williams was at a high general risk of re-offending, and recommended that he: participate in a re-integration program to address negative social environments; be assessed for participation in drug and alcohol treatment programs; and be assessed for suitability to participate in offending behaviour programs to reduce the risk of further offending.
A report by the Department of Justice dated 23 March 2012 following Mr Williams’s completion of the Violence Intervention Program concluded that he was considered to fall into the Moderate-Risk category of re-offending, and that he had a higher probability than other males of committing further violent offences. The report recommended that Mr Williams undertake the Moderate Intensity Violence Intervention Program or the Making Choices Program for Men.
Mr Williams completed the Making Choices Program for Men and the completion report dated 7 June 2012 noted that initially he was a passive participant due to anxiety and low self-esteem, but he became more confident and engaging. He attended all 40 group-based sessions and showed a willingness to work with peers to manage the program’s commitments. The report concluded that Mr Williams will need to address a number of variables to manage his risk of re-offending: these include his work ethic; contact with criminal peers; substance abuse; and violence cycle. Recommendations included reinforcement of avoidance of high-risk situations by monitoring his peer association, in particular avoidance of heavy drinking with family members; and encouragement for him to become more assertive during interpersonal conflict. Mr Williams completed a semi-intensive drug and alcohol treatment program on 3 October 2012.
A further VISAT report dated 15 October 2012, shortly before Mr Williams’s release on parole, assessed him as at high risk of re-offending, with specific risks being involvement with criminal associates, violence and substance use, although the report recognised that Mr Williams had displayed insight into his violent offending. There was concern that he indicated potential future contact with his co-offenders.
Mr Williams has not spent any time in the community since his recent incarceration. He told the Tribunal that he has obtained full-time employment and wishes to have a chance to make up for all his previous wrongdoing. He acknowledged that in the past he was young and naive and had not taken advantage of the opportunities Australia had to offer. He admitted that he had to take full responsibility for his actions and has completed a number of programs in prison to deal with his offending behaviour. Mr Williams explained that the offences which were the subject of his Court appearance on 14 December 2011 were committed prior to his appearance in the County Court on 16 August 2011, and occurred in April 2010 when he had been drinking and had borrowed a friend’s car, which was reported stolen, while other sentences were by way of re-sentencing for earlier matters for which he had been placed on a Community-Based Order. He agreed that he also pleaded guilty to careless driving, unlicensed driving and refusing to remain at a Police Station for a breath test.
He emphasised that the major offences occurred in October 2008, and that between that time and his sentencing in August 2011 he had lived in the community and had held full-time employment as a concreter. He also noted that the sentencing judge had reduced the sentence because of an early plea of guilty accompanied by remorse and regret; the plea of guilty was of assistance to the Crown’s case; the delay of nearly three years in sentencing removed the possibility of a Youth Justice Centre detention order; the judge recognized that he had reduced his level of drinking and had taken steps to rehabilitate himself; and the minimum sentence imposed was significantly less than would otherwise have been the case.
Mr Williams stated further that his risk of re-offending is low. He said that he is drug-free and no longer abuses alcohol; he did not commit any offence or misconduct during his term of imprisonment; he completed several courses while in custody; the offences were committed as a teenager and he is now 23 years of age and has gained insight into his offending behaviour; his attendance and contribution to the courses were favourable; he has maintained a close relationship with his partner; he has a strong network of family and support within the Australian community; and has sound employment prospects.
In relation to the assessments written about him during his incarceration, Mr Williams maintained that the VISAT report dated 26 August 2011 was based on an assessment at the time of offending as opposed to the time of release from detention. He emphasised that the report noted his willingness to participate in education and drug and alcohol programs and a violence program, and that he had reduced or ceased his use of cannabis and alcohol. He pointed out that the writer of the report did not have access to the judge’s sentencing remarks when compiling the report.
In relation to the VISAT report dated 15 October 2012, he said that the assessment acknowledged his remorse for previous offending and that the recommendation was for him to attend a moderate intensity Violence Intervention Program rather than a high intensity program.
Ms G Taruia told the Tribunal that she has known Mr Williams for ten years and has been his partner since February 2010. She explained that she and Mr Williams were living together before his imprisonment, and they had made plans to save for the purchase of a house. Ms Taruia described Mr Williams as extremely supportive, both emotionally and financially, and said that she has been supportive of him and has assisted his rehabilitation.
Ms Taruia stated that Mr Williams has expressed to her on many occasions his remorse for his criminal conduct and his regret for the harm he has caused. She said that she has observed his transformation from a foolish youth …into an amazing, mature and passionate man that wants nothing more than to do great things in life and give back to others. She added that the time he has spent way from her has given them both a new perspective on life and what lies ahead for them. She said that she has found a place for them to live and Mr Williams is likely to obtain employment. She said that he deserves to remain in Australia with her and would not wish to be anywhere else.
Under cross-examination Ms Taruia agreed that in April 2010 Mr Williams committed further offences while living with her, but afterwards she had separated briefly from him to demonstrate her displeasure. She stated that Mr Williams has learnt his lesson, he no longer abuses alcohol and will not re-offend.
Mr J Williams told the Tribunal that he is Mr Williams’s brother and is the only family member living in Melbourne. He said that Mr Williams has matured into a hard-working and family-oriented man who is remorseful and has learnt from past mistakes. He said that Mr Williams would be welcomed back into the concreting business where both worked previously. Under cross-examination he agreed that he was a co-offender in the serious offences committed in October 2008 and was sentenced to 13 months’ imprisonment, wholly suspended for 18 months. Mr J Williams maintained that he no longer abuses alcohol, has not committed any further offences, and is a good role model for Mr Williams.
Reverend A Williams told the Tribunal that he is Mr Williams’s father and is a minister with the Cook Islands Christian Church. He said that he and his wife were posted to a parish in Hastings, New Zealand in 2007 and intend to return to Australia at the completion of their term in 2015. Rev Williams stated that Mr Williams, together with the other unmarried children, was left in the family home when the posting to New Zealand commenced, which was difficult for Mr Williams and contributed to his criminal behaviour. However he indicated that circumstances have changed and Mr Williams is unlikely to re-offend.
Mr T Williams stated that he is Mr Williams’s older brother and described Mr Williams as …honest, loyal and very, hardworking, for the most part, these traits have served him good, but sometimes his loyalty and honesty to those around him have landed him on the wrong side of the law. He said that Mr Williams committed the crimes as a boy, and is now a man who has his mind set on a successful and lawful life. Letters of support were also received from a sister and a sister-in-law.
In Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81 Davies J held that even if the risk of recidivism is not high, it will strongly support deportation (or visa cancellation) when recidivism, if it does occur, may cause great harm. In Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198 the Full Court of the Federal Court held that a real risk of recidivism is one that is not far-fetched or fanciful, and can include a low or minimal risk.
The Tribunal takes into account that Mr Williams has expressed remorse for his criminal activities, has undertaken courses in prison and has stated that he is unlikely to re-offend because he is now a mature adult who has learnt from his mistakes. His partner and family members have also given assurances that he will not re-offend. However he has a pattern of offending between 2004 and 2010, including numerous breaches of Court orders where the consequences of re-offending have been made clear to him, yet he has continued to re-offend, despite family support and stable employment. The Tribunal also takes into account the findings of several objective reports, including the VISAT assessments, one of which shortly before his release assessed his risk of re-offending as moderate or high, with specific risks identified, including contact with criminal peers.
The Tribunal further takes into account that, apart from Ms Taruia, the only family member living in Melbourne is Mr J Williams, who considers himself a role model to Mr Williams. He was a co-offender in the serious offences and is one of the persons identified in several of the assessments as a criminal peer with whom Mr Williams should refrain from having contact.
On the basis of all the material, the Tribunal finds that Mr Williams's risk of re-offending is at least moderate.This, together with the finding that the offences and the nature of his conduct are extremely serious, leads the Tribunal to conclude that the first primary consideration weighs strongly in favour of cancellation of the visa.
(b) The strength, duration and nature of the person’s ties to Australia;
Paragraph 9.2.1 of Direction 55 states that the decision-maker must have regard to the following:
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
Mr Williams was born in New Zealand and at the age of two he moved with his parents to the Cook Islands until he arrived in Australia at the age of nine years and has resided here since then. He commenced offending about four years after his arrival and has continued to re-offend until 2010.
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.
Ms Taruia is an Australian citizen. Mr William’s parents are Australian citizens who currently live in New Zealand with his youngest sibling. The other four siblings live in Australia and (apart from Mr J Williams) are located in Queensland, Western Australia and rural Victoria. Extended family members live in Australia.
Mr S Jackson told the Tribunal that he has known Mr Williams and worked with him for two years as his foreman at a concrete construction company. He said that Mr Williams has been an asset to the company and has shown a positive work ethic and has the potential to lead his own team. Mr Jackson said that Mr Williams would be welcome to return to the company. Mr M Shehata stated that he has known Mr Williams for 12 years, and described him as a loving and caring person who has developed into a young man with high integrity and is a respectful, honest and caring person. Ms T Rexter stated that she and her family regard Mr Williams and his family as their own extended family. She said that Mr Williams has grown into …a nice young man, always respectful, courteous, considerate and willing to help.
The Tribunal takes into account that Mr Williams has spent part of his childhood and his formative years in this country and began offending some four years after arriving in Australia. He has been largely in full-time employment since 2004 as a machine operator, spray painting apprentice and concreter. He is highly regarded by his most recent employer.
The Tribunal concludes that Mr Williams has close ties to Australia, having lived here for 13 years, having a partner for almost three years, regular employment, plus the presence of four siblings and extended family in Australia.
In all the circumstances this primary consideration weighs against cancellation of the visa.
(c) The best interests of minor children in Australia
Mr Williams told the Tribunal that there are no minor children in Australia whose best interests will be significantly affected by the cancellation of his visa. His youngest sibling is an Australian citizen and a minor, although she lives in New Zealand at present. The Tribunal finds that this primary consideration weighs neither for nor against cancellation of the visa.
(d) Whether Australia has international non-refoulement obligations to the person.
Paragraph 9.4(1) of Direction 55 states:
In cases where claims which may give rise to international non-refoulement obligations [relating to returning persons who may face risks of a type set out in various international treaties] are raised by the person or are clear from the facts of the case, they must be given consideration if the person is in Australia.
Mr Williams did not make any claims which require assessment in relation to Australia's international non-refoulement obligations, nor are any claims apparent from the material available to the Tribunal. Consequently the Tribunal finds that this primary consideration weighs neither for nor against cancellation of the visa.
Assessment of other considerations
Paragraph 10(1) of Direction 55 provides a list of non-exhaustive other considerations that must be taken into account where relevant:
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;
Ms Taruia told the Tribunal that she has stable employment, accommodation, family and friends in Australia. She has spent her life here and said that cancellation of the visa would be devastating for her because …I simply cannot move to another country and leave all this behind [and] it would absolutely traumatize me. And having to deal with all this without Marouna in Australia would be impossible. Rev Williams stated that he and his wife would be unable to return to Australia at the conclusion of their posting if Mr Williams’s visa is cancelled because they would be required to assist him to establish his new life in New Zealand, and there would be difficulty in finding employment for Mr Williams and suitable accommodation for themselves when their posting ends.
The Tribunal concludes that cancellation of Mr Williams's visa would have an adverse effect on his partner, parents, siblings and extended family living in Australia.
b) Impact on Australian business interests
There does not appear to be any impact on Australian business interests of cancellation of Mr Williams's visa.
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;
A decision not to cancel Mr Williams's visa may have an adverse impact on members of the Australian community, including victims of his criminal behaviour and family members of victims, who might fear that Mr Williams would re-offend.
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.
Mr Williams told the Tribunal that he would face extreme impediments if removed to New Zealand. He stated: It is not an option to move back to New Zealand and force Grace to move there where neither of us have employment or a home or high prospects of finding employment when we don’t have the contacts we have here. Rev Williams stated that, despite any assistance that he and his wife would be able to provide, Mr Williams does not know New Zealand because he was aged two years when he left. He said Mr Williams would face difficulty in finding employment in Hastings, where work is seasonal.
The Tribunal takes into account that Mr Williams has not lived in New Zealand as an adult and has a limited education and would face challenges in beginning a new life in that country. His partner has stated that she would not re-locate to New Zealand. However he is a young person in apparent good health and has a sound employment record and prospects that should allow him to maintain a basic living standard. As New Zealand has a similar culture and society to Australia, there would be no serious language or cultural barriers facing him if he was to return there. Basic social, medical and economic support available to New Zealand citizens would apply to him. His parents live in New Zealand at present and have indicated that they would assist him with accommodation and in finding employment. On balance, the Tribunal finds that Mr Williams would not face significant impediments in establishing himself in New Zealand.
Conclusion regarding other considerations
Although his parents live in New Zealand and he would be able to establish himself and find employment there, Mr Williams, his siblings and partner in Australia would suffer some hardship if he is removed. The Tribunal concludes that the other considerations weigh against cancellation of the visa.
SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?
The Tribunal has concluded that the first primary consideration concerning protection of the Australian community weighs strongly in favour of cancellation, and the second primary consideration concerning Mr Williams’s ties to Australia weighs against cancellation. The third and fourth primary considerations do not have any practical application.
The Tribunal has concluded that the other (not primary) considerations weigh against cancellation, and the Tribunal takes into account that, generally, other considerations should be given less weight than that given to primary considerations.
After considering all the circumstances of the primary considerations and the other considerations the Tribunal finds, particularly in respect of the seriousness of the offences, the nature of Mr Williams’s offending history and the risk of re-offending, that the factors in favour of cancellation of the visa outweigh the factors against cancellation, so the discretion to cancel the visa should be exercised.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member ........................[sgd]................................................
Associate
Dated 16 January 2013
Date of hearing 14 January 2013 Counsel for the Applicant Mr G Hughan Solicitors for the Applicant Carina Ford Immigration Lawyers Advocate for the Respondent Mr D Brown Solicitors for the Respondent Australian Government Solicitors
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