Mataia and Minister for Immigration and Border Protection (Migration)

Mataia and Minister for Immigration and Border Protection (Migration) [2017] AATA 690 (17 May 2017)
Division:GENERAL DIVISION
File Number(s): 2016/6027
Re:Rhakim Mataia
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:17 May 2017
Place:Sydney

The decision under review is affirmed.
.........................[sgd]...............................................
Mrs J C Kelly, Senior Member
Catchwords
IMMIGRATION – visa – cancellation – character test – substantial criminal record – robbery in company – four years imprisonment – protection of the Australian community – best interests of minor children – expectations of the Australian community – strength nature and duration of ties to Australia – extent of impediments if removed from Australia – decision affirmed
Legislation
Migration Act 1958 (Cth) ss 499, 501(3A), 501CA
Secondary Materials
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
17 May 2017

The applicant, Mr Mataia, is a New Zealand citizen. He was born in 1995 and came to Australia for the first time in 2007. He spent short periods of time in Australia in 2007 and 2008. Since December 2008 he has departed Australia on three occasions for three periods of just over two weeks, in 2012 and 2013.
On 2 June 2016 the applicant’s Class TY Subclass 444 Special Category (Temporary) visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the Act) because the Minister was satisfied that he did not pass the character test because he had a substantial criminal record and was serving a sentence of imprisonment, on a full‑time basis in a custodial institution. The applicant subsequently lodged a revocation request.
The applicant has applied to this Tribunal for review of the decision made by a delegate of the Minister for Immigration and Border Protection on 14 October 2016 not to revoke the cancellation of the applicant's visa under s 501(3A) of the Act.
Relevantly, s 501CA provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
In exercising the power under s 501CA(4) the Tribunal must comply with Direction No. 65 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction). In summary, Part C of the Direction requires that the following considerations be taken into account:
Primary considerations
(a)the nature and seriousness of the applicant's conduct, and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct;
(b)whether the best interests of any minor children will be affected by the decision, and if so, how those interests will be affected;
(c)what the expectations of the Australian community would be in relation to the possible revocation of the applicant's visa;
Other relevant considerations
(d)International non-refoulement obligations;
(e)The strength, nature and duration of the applicant's ties to Australia;
(f)Impact on Australian business interests;
(g)Impact on victims;
(h)Extent of impediments if the applicant were removed.
Weighting of considerations
The Direction sets out guidance for taking the relevant considerations into account (cl 8). The primary considerations should generally be given greater weight than the other considerations (cl. 8(4)).
Primary Considerations
The applicant’s criminal record or other conduct to date
On 19 November 2015 the applicant was found guilty of two offences of robbery in company and sentenced to imprisonment for four years commencing 5 June 2014 and concluding 4 June 2018 in respect of victim 1, and four years commencing on 5 September 2014, expiring on 4 September 2018 in respect to victim 2. A non-parole period with conditions of two years was imposed in relation to each offence. Those proceedings were in the Campbelltown District Court. The offences were committed on 25 May 2014 when the applicant was 19 years old. He entered a plea of guilty in March 2015.
On 13 June 2013 at the Parramatta Children’s Court, the applicant was found guilty of aggravated break and enter in company and released on probation for 12 months under supervision.
On 9 March 2012 at Parramatta Children’s Court, the applicant was found guilty of two offences, assault occasioning actual bodily harm and affray, and ordered to enter into a good behaviour bond for 12 months under the supervision of Juvenile Justice. The evidence shows that after the commission of those offences at the end of 2011 or the beginning of 2012, the applicant moved from Sydney, where he had lived with his mother, step-father and their two children, to Brisbane to live with his father. His father is married and has three children with his wife.
The applicant gave the following background to the 2014 offences. He had lost his job as a removalist about two weeks before because he had slept in and was late for work. He met with friends and went to a party. After driving home, the car broke down. They started walking to the train station. Two people walked past. One of the applicant’s friends asked for a cigarette, which was offered, but his friend took the whole packet and went through the victim’s pockets and hit him.
The seriousness of the two robbery in company offences committed in 2014 is reflected in the sentences imposed by Judge English. The Tribunal viewed the CCTV footage of the offences. The cameras were attached to the Macquarie Fields Police Station. In summary, the applicant committed the offences with four accomplices. There were two victims. The applicant’s involvement was described by Judge English in her sentencing remarks:
(a)He punched and continuously hit victim 1, with three other offenders, until victim 1 fell to the ground.
(b)He did sidesteps and held his arms in a boxing like stance towards victim 2 to keep him away from the victim 1 who was on the ground and being continuously punched and hit by three of the offenders.
(c)After the other offenders had robbed victim 1, they pulled him up and he started to walk away. The applicant hit victim 2 over the head and walked towards victim 1.
(d)The applicant and two other offenders followed victim 1, who was punched by a fourth offender and knocked unconscious, falling to the ground face first. The applicant kicked victim 1 to his ribs on the right-hand side. The applicant stood next to victim 1 while another offender went through the victim’s pockets. The applicant started to walk up the road but turned and faced victim 1 while another offender stomped on victim 1’s head twice and then kicked him to the head.
(e)The offenders turned their attention to victim 2, who was hit over the head with a beer bottle and punched in the head by the applicant and another offender and punched in the stomach by another. When victim 2 walked away, he was attacked again and was knocked to the ground, where he was kicked in the head while sitting on the roadway, causing him to fall backwards onto the roadway where he remained unconscious.
That outline does not include details of all the violence the victims suffered at the hands of the applicant’s co-offenders.
Victim 1 was taken to hospital. He had sustained grazed abrasions around the left orbital region, grazed abrasions around the left eyebrow, tenderness of the infra orbital region, left peri-orbital swelling and a reasonably significant abrasion to the forehead and left cheek, bruising around the left eye and neck pain.
Victim 2 sustained a right scalp haematoma, facial bruising, bruising and/or abrasion of the left ear, a left parietal haematoma on the upper half of the skull, swelling of the left zygoma and bruising under the left eye. There were two small areas of haemorrhage within the brain. He was admitted to hospital where he remained for three days.
Property was stolen from the victims, including phones, a wallet containing cash and various cards.
During a police interview, the applicant said that he was involved because “I seen (sic) everyone else getting involved”. When asked why he kicked the victim in the head, the applicant said: “I’m not sure, just, I probably just seen him on the ground and just probably easy target. I would’ve just went and kicked him” (sic). He knew that phones, money and a knife were taken when they were walking down the road talking about it. He claimed to have received “ten bucks”. When asked what they did to victim 2, the applicant said “I’m not sure…I probably hit him too”. He said that he threw the phone in the lake because he thought it was tapped. After watching the CCTV footage, the applicant admitted that fairly serious injuries were foreseeable as a result of their conduct: “yeah, I was, yeah, pretty bad”.
The applicant told the sentencing judge in 2015 that he had not seen his 2014 co-offenders for two or three years prior to the 2014 offence and intended to stay away from them when released.
Those crimes were violent and unprovoked and are viewed very seriously. The Tribunal has taken into account that they were not premeditated, that the applicant claimed that he had been drinking before the offence, that he had pleaded guilty in March 2015, and the psychiatrist’s diagnosis of alcohol use disorder in the report dated 22 May 2015. The Tribunal notes that the diagnosis was not alcohol abuse disorder as the applicant’s representative submitted.
The applicant told the Tribunal that he committed the earlier “aggravated break and enter in company” offence of which he was convicted in 2013, with one of his co-offenders in the 2012 offence. He said that the aggravated break and enter in company offence occurred when he returned to Sydney from Brisbane on holidays. Later at the hearing, he said that it occurred when he came to Sydney to attend court in relation to the affray and assault offence of which he was convicted on 9 March 2012. It occurred a couple of nights before he was sentenced. The Tribunal finds that the aggravated break and enter in company offence occurred around 7 March 2012, about three months after the applicant had committed the affray and assault offence and moved to Brisbane to live with his father. He said that the court was not aware of the second incident in March 2012 because he had not been charged.
The applicant gave the following evidence about the circumstances in which the aggravated break and enter in company offence occurred. He met up with some friends and went out drinking at a pub. They were walking home. They passed a big house and someone decided to rob it. They went to the door and knocked and kicked in the door. They did not enter. Nothing was taken from the property. Later, he said that he did not recall much but apparently he was kicking the door as well as others. He agreed that he joined in with whatever his friends were doing, kicking in the door of a house or attacking people. He did not know at the time whether anyone was at home but found out later they were, and on reflection, thought that they would have been scared and in fear for their life, not knowing what was happening.
When he was sentenced in June 2013, the applicant had to visit Fairfield probation every six weeks initially until the officer cancelled that requirement. He was not drinking while visiting the probation office but did after that. He had to show pay slips to prove he was working. He began work with a removalist at the end of 2012. The applicant said that the probation service never asked him about his drinking but did ask about anger management that had been a factor in his offending. The applicant said that he has a “short fuse” but normally if he is not drinking, he can walk away. He was still under the supervision order when he committed the offences in 2014.
The applicant described the circumstances of the assault and affray offence as follows. It occurred while he was living in Sydney. He attended an under-18 dance party with a group of friends. One of his friends had a fight with someone and it became a big brawl. Three people were hurt, including one who was badly hurt and taken to hospital. The applicant said that he did not hit that person but he did hit someone. He said that his supervision was transferred to the Queensland parole service.
It is apparent from the above account that the applicant’s criminal offending has increased in seriousness from his first until his most recent offences. He has not reoffended since 2014, but he has not been out of prison custody or immigration detention.
The applicant’s conduct while in prison is relevant.
On 8 March 2016, a written warning was issued to the applicant in relation to his involvement in a yard disturbance linked to gang activity. He met the “below extreme threat inmate indicator”. His activities were to be monitored. If he continued to be involved in any security incident, his case would be escalated for consideration for security placement. The applicant told the Tribunal the following: There had been a massive fight and he just happened to be there. He was watching and did not tell any corrections officers about it. He disagrees that he was involved. The only thing he did was push someone into the fence when he ran away from a group of people bashing him. The group yelled to stop the man, which the applicant did. The group caught up and bashed the individual. The applicant explained that when he first got to Goulburn Correctional Centre there was a lot of tension and dramas between two camps. A person he knew from the previous gaol said to pick a side, and so he did. He was moved to Wellington Correctional Centre as part of an effort to reduce tensions in Goulburn. He was found to have graffiti in his prison cell but claimed that his cell-mate had done it but the cell-mate said that the applicant had.
On 10 March 2016, the applicant was involved in lighting a fire in a cell. The prison records state that when staff responded and opened the cell, the two inmates assaulted the staff, resulting in chemical munitions being deployed and a Use of Force. Consequently, he was placed in segregation.
The applicant’s account to the Tribunal was different. He claimed that his cell-mate lit the fire. They were locked in. The applicant said that he did not encourage his cell-mate but did not stop him. He did not agree that he was aggressive or struggled or did not comply with directions from prison officers.
On 25 May 2016 the applicant threatened an officer at Cessnock Correctional Centre. He was confined to his cell for five or ten days, the evidence is unclear. The applicant said that he lost his temper when he made a request which was not met.
The applicant said that when he was first imprisoned, he had a ‘B’ or medium security classification but when he left, his classification was ‘A’ – maximum security, which is a higher level of control such that inmates come into the yard later and are locked into their cells earlier.
The applicant’s conduct in prison did not impact on his parole, which was granted in the shortest time specified in the sentence.
When asked about his experience in prison, the applicant said that it was pretty tough, especially being away from his family, and he was one of the youngest there. In response to a question about whether he had learned any lessons from his time in prison, the applicant said that he did not want to go back there; it was a scary place and he is not the biggest of guys.
The applicant’s representative put a number of matters in mitigation of the applicant’s conduct, including his age at the time of the offences and his personal circumstances.
The Tribunal accepts that the applicant was 16 when he committed his first offences and 19 when he committed his last two offences. The Tribunal does not accept that his criminal offences were stupid mistakes that the Australian community tolerates.
The applicant said that he began drinking in year 10 but as soon as he dropped out of school in 2011 he was drinking all the time. He would drink 12 large bottles of beer a day, plus about a litre of white wine and once a week, half a bottle of spirits. He said that he worked at McDonald’s when he first left school.
The Tribunal accepts the evidence of the applicant’s mother that the applicant’s step-father moved into the home in 2010 when she became pregnant with their first child. The step-father told the applicant to leave the family home in about July 2011 because of conflict between them. The step-father believed in hard work and did not agree with the applicant spending time doing youth work at the Hillsong Church. The applicant’s mother said that her husband was also jealous of her relationship with the applicant.
The Tribunal accepts that the applicant struggled with the changed domestic situation in 2011 in particular, and from July 2011, he couch-surfed with friends whom he said were not involved in the offences committed in 2011 or 2012.
The applicant’s mother gave evidence that she was the victim of domestic violence in New Zealand when the applicant was young. There is no mention in the evidence, including a psychiatrist’s report, as opposed to the submission, that the applicant’s behaviour was a consequence of his witnessing that violence.
The applicant’s representative submitted that the instability at home and lack of a male role model led the applicant to find support in friends and alcohol, and that alcohol abuse and being with the wrong crowd explained many of the reasons which led the applicant to behave as he did.
The Tribunal accepts that alcohol and being with the wrong crowd were factors involved in all the offences of which the applicant has been convicted.
The Tribunal accepts that the applicant has always had, and presently has, a very close relationship with his mother.
The evidence of the applicant, his father, mother and step-mother shows that after his parents separated, the applicant saw his father and his family, including his paternal grandparents in New Zealand before his father moved to Australia, and then he visited his father and his family in Australia, during some school holidays, including at Christmas 2008 and 2010. The pre-sentence report dated 14 May 2015 says that he had maintained limited contact with his father.
His mother said that when the two of them moved to Australia, the applicant wanted to move to Queensland rather than Sydney, to be with his father and cousins, but she wanted to come to Sydney where she had a cousin and friends. She said that she did a deal with him. She said that the applicant found it difficult at first but seemed to settle once he found friends and started going to church with a family friend. She is not a church-goer. His father and his family are church-goers.
It is not clear to the Tribunal how or why the applicant was involved with the people with whom he committed the criminal offences, apart from knowing some of them from school. Before being asked to leave home in July 2011, he had been working at McDonald’s for about three months and had been attending Hillsong Church since 2009 and was involved in youth work at that church. While domestic instability and the influence of alcohol and bad company might excuse or explain the first offences committed in 2011, the Tribunal does not accept that the later offences fall into that category.

The applicant committed the March 2012 offence during a brief period when he had returned to Sydney from Brisbane to attend court for sentencing for the first offences committed in November 2011. The applicant said that his father flew down from Brisbane when he first went to court in November 2011. The 2015 pre-sentence report states that the applicant had moved to Brisbane to live with his father and his family to get him away from negative influences, which the Tribunal understands refers to influences related to the 2011 offences. Based on his father’s evidence, it is likely that the applicant had been attending church while he was in Brisbane. About two days before he was to attend court in March 2012, the applicant met with one of his 2011 co-offenders, drank alcohol, and committed another offence.
The applicant repeated year 11 in 2012 while he was living in Brisbane with his father and his family. The applicant said that he did not drink during that period. He returned to Sydney to live with his mother, step-father and their two children in about December 2012 and got a job as a removalist. He did drink alcohol in 2013.
The 2014 offences were committed about eighteen months after the applicant had returned to Sydney from Brisbane. It is clear that his mother was very busy looking after the younger two children and was not providing guidance to the applicant. For example, she was unaware that the applicant and one of the witnesses, a Hillsong Church attendee, had consumed a case of beer each at her home. She described such drinking as usual for Maoris/Pacific Islanders.
The applicant was working as a removalist from the end of 2012 until he lost his job about two weeks before he committed the 2014 offences. He was still under the supervision order imposed in 2013 but said that he did not know that until after he had committed the 2014 offences.
The evidence does not suggest that conflict with the applicant’s step-father was a reason for the 2014 offences. The applicant told Dr Nielssen, psychiatrist, in May 2015 that he got on well with his step-father. His mother told the Tribunal that the step-father was working shift work and that he and the applicant did not see each other.
On the evidence it is clear that from his return to Sydney at the end of 2012, until the time of the 2014 offences, the applicant was involved in the Hillsong Church, where he became a leader.
All the criminal offences reflect poor decision-making by the applicant in relation to the people he mixed with, his drinking of alcohol, and then doing what the people he was with did. His conduct is not consistent with the many claims made in references and by witnesses in their oral evidence, about his leadership, and his gentle and good nature. His conduct during the offences is that of a follower. He lacked insight into the impact of his actions on the victims. While he has expressed his regret and remorse, the Tribunal found his evidence formulaic and unpersuasive. He downplayed his responsibility for his actions.
The Tribunal concludes that the applicant behaves as those he is with at the time behave. If he is with people who are kind and helpful, he is kind and helpful. If he is with people who are violent, he is violent. His conduct in prison, discussed above, reinforces the Tribunal in making that finding. The Tribunal notes that there is no suggestion in the evidence that alcohol was a factor in any of the incidents while the applicant was in prison. It does take into account his evidence that he was one of the youngest there, it was a scary place, and he does not want to go back and infers that there was pressure from other inmates to conform. The Tribunal has also taken into account that Dr Nielssen estimated that the applicant’s overall intelligence was at the bottom of the normal range.
The applicant has not shown by his conduct, a capacity to make a decision to act otherwise than how those around him are acting, or to stay away from people who he knows from experience are not a good influence, or to avoid drinking alcohol. He has a short-fuse, as he said, and not only when he has been drinking alcohol. The incident when he was aggressive towards a corrections officer who did not immediately respond to the applicant’s request demonstrates that.
The Tribunal has taken into account that there are no reports of any incidents that are adverse to the applicant since he has been in immigration detention. The Tribunal notes that the applicant’s visa had been cancelled and he has been seeking to have that cancellation revoked during that period, which may have had the desirable consequence of motivating the applicant to avoid any such incidents.
Taking into account all the above, the Tribunal finds that the applicant’s criminal record or other conduct to date, weigh heavily against revocation of the visa cancellation decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The applicant’s representative submitted that the applicant poses no further risk to the Australian community and that the risk of recidivism is low for the following reasons:
·the applicant has shown strong signs of reform and rehabilitation;
·he is extremely remorseful and understands the reasons for his past offending, the impact on the victims and how to stay out of trouble in the future;
·he has a good work history, has indicated he wishes to improve his position and get somewhere, and he has job prospects with his father and in Sydney;
·the applicant had behaved well in prison and in immigration detention with no known incidents reported, and was released from prison at the earliest opportunity; and
·he will have accommodation available to him in both Sydney and Brisbane with his parents.
The applicant’s representative submitted that the applicant had very limited access to rehabilitation programs in prison, because for most of the time, he was on remand without access to such programs. That may be so for about the first 12 months, but for the next 12 months, his movement between prisons, at least twice as a consequence of the applicant’s involvement in incidents in the prison, from Goulburn to Wellington and then to Cessnock, was another reason.
The applicant wrote to the delegate on 6 October 2016 expressing his regret for his actions during the 2014 offences and the harm caused to the victims. He wrote that he had reflected on his past decisions and concluded that the main issues he had were alcohol abuse, poor decision-making and negative peers. He claimed to have taken steps to rehabilitate himself including seeing a psychologist while in custody, phone counselling with “drug and alcohol anonymous”, and being referred for face to face counselling on release from Villawood. He expressed a wish to “do anger management and life skills”. He wrote that he intended to move back to Queensland with his mother and two younger siblings where he would be employed in his father’s business and where his father, his wife and their three children live. He claimed to have many friends and family there.
The applicant told the Tribunal that he had done no courses in prison and had not received counselling for alcohol or anger management.
The Tribunal finds that the applicant has been involved in little by way of rehabilitation programs but has expressed an intention to do drug, alcohol and anger management courses when he is released from detention. He told the Tribunal that a condition of his parole was that he not associate with anyone involved in the 2014 offences. He was not sure of the other parole conditions but thought that the NSW parole service could help him access courses. He is on parole until the middle of 2018.
The applicant has expressed his remorse and regret, including for the harm caused to the victims of the 2014 offences, however, the Tribunal does not accept that his evidence reflects that he has insight into his conduct and its impact on victims, or that he genuinely accepts responsibility for his conduct. He tended to blame other people. The Tribunal does not accept that the applicant has shown strong signs of reform and rehabilitation. He has shown some signs of reform and rehabilitation. He has had the experience of being in prison and has expressed the wish not to return there. He has not spent any time in the community since the 2014 offences for his statements of good intention to be tested.
The Tribunal gives significant weight to the fact that the applicant had the support network of the members of the Hillsong Church available to him in 2011 when he was asked to leave his home, and when he committed all the offences. The Tribunal does not accept his mother’s explanation for his criminal offences that he wanted to be part of a group. According to the evidence in many references and the evidence of the applicant, his mother and Mr Qereqeretabua, he was part of a group, members of the Hillsong Church. He had been involved in youth work before he left home in 2011. He was a youth leader from 2013 after he returned to Sydney. The fact that he was surrounded by people, including his mother, who do not commit criminal offences, was not sufficient in the past to stop him making poor choices on three occasions to mix with another group or groups and to drink alcohol.
Based on the evidence before it, the Tribunal is not persuaded that the applicant will not drink alcohol when he is released into the community. His mother knew that he drank alcohol but said that he did not drink much at home and did not know that he went out drinking. She did not realise how much he drank until the 2014 offences. She was not aware that Mr Qereqeretabua drank alcohol or that he and the applicant had each consumed a case of 600ml bottles of beer at her home. She said that they were outside. Mr Qereqeretabua said that they did not drink too much and he told the applicant to go to bed if he was too intoxicated. Mr Qereqeretabua said that one or two cases would be “ok”. The applicant’s mother said that it is the normal culture for Maoris and Pacific Islanders to binge drink. The Tribunal has taken into account that the applicant did not drink alcohol while he was living with his father in Queensland but at that time, he was going to school and was also under a supervision order overseen by the relevant Queensland authority.
The applicant has worked at McDonald’s for a few months and as a removalist for about 18 months until he lost his job because he slept in and was late to work on two occasions. Mr Qereqeretabua, who had worked with the applicant, was not aware that the applicant lost his job for that reason. While not a bad work record, the Tribunal does not accept that it is a good work record.
The Tribunal accepts that the applicant has job prospects when he is released from detention. He may work in Queensland for his father or in New South Wales working in demolition. The applicant did not know the person who was offering him employment in New South Wales. He said that the work had been arranged through a family friend and that he had spoken to the person on the telephone and told him about his situation. He also said that he planned to move back to Brisbane after his parole has finished. The Tribunal gives less weight to his job prospects in New South Wales than with his father because the potential employer made no reference in his letter to the applicant’s criminal history and the description of the applicant’s work history as being of “great time management,…and reliability” is not accurate. The Tribunal accepts that Mr Qereqeretabua has said that he will also assist the applicant to get work. The applicant was not actually working when he committed any of the offences. He was probably attending school while living with his father in Brisbane when he returned to Sydney and committed the 2012 offences.
For the reasons already set out above, the Tribunal does not agree that the applicant behaved well in prison. In making that finding, it has taken into account that he said that it was a scary place, he was one of the youngest there and does not want to go back and infers that there was pressure from other inmates to conform. The Tribunal accepts that there have been no adverse incidents in immigration detention.
The Tribunal accepts that the applicant can live with his father in Brisbane or with his mother in Sydney when he is released. The applicant told the Tribunal that he and his mother had discussed moving to Queensland because he was doing well there and she thinks life would be more family orientated. He was living with his father in Queensland when he committed the 2012 offences. The applicant and his mother said that the step-father left the family home a few months after the applicant was gaoled in 2014. The applicant was living with his mother when he committed the 2014 offences, which were the most serious. She said that she was unaware of the supervision order imposed in relation to the 2012 offences until she went to court in relation to the 2014 offences.
Taking into account all the above, the Tribunal considers that the applicant represents an unacceptable risk of harm to individuals or groups in the Australian community.
Best interests of minor children in Australia affected by the decision
The applicant’s representative did not press the consideration of the best interests of minor children in Australia affected by the decision in their written submission, however, it was addressed by both parties during the hearing and arises on the evidence before the Tribunal. The consideration is not confined to parental relationships with children.
When asked at the hearing about his step-siblings, the applicant said that his mother’s children were five and six but he could not remember the ages of his father’s children but they were all were under 12. He said that his mother’s children were two and a half and three and a half when he went to prison in June 2014. The applicant said that apart from living with his father in 2012 when he repeated year 11, he has not lived with that family. He said that he was in contact by telephone.
The applicant’s representative submitted that the applicant was a father figure to his mother’s two younger children. The Tribunal finds that submission and the evidence about the relationship between the applicant and those children are exaggerated and does not accept the suggestion that the applicant is a role-model for anyone, including his step-siblings who are the children of his mother. The Tribunal does accept that when he was working, the applicant provided some financial support to his mother and to them.
The applicant left the family home in July 2011 when the older child was about six months old. He returned from Brisbane in about December 2012 when that child was about two and the younger child was celebrating her first birthday. When he was arrested in mid-2014, the applicant said that the older child was three and a half and the younger child was two and half. He has not lived with them since. They are both recorded as having visited him in prison in the period 26 May 2015 to 26 May 2016 but how often is not recorded. During the period December 2012 to May 2014, the applicant was working. On his evidence, the children went into day care when his mother returned to work after he started work, around December 2012. The Tribunal accepts that the applicant provided some assistance to his mother in caring for the children when he was at home and not at work in 2011 and from December 2012 to May 2014 and would do so in the future. Both children said hello to and waved to the applicant when they saw him on the video screen in the hearing room.
The Tribunal finds that both children have had limited contact with the applicant since June 2014. The applicant’s relationship with the children is non-parental. He is a step-brother. His past conduct has negatively impacted on them by exposing them to prison, when they visited him, however given their ages that may have been negligible.
The children’s father did not leave the family home until after the applicant had been gaoled. According to the applicant’s mother, the children’s father does provide child support payments, although there was a period when he did not.
If the applicant’s visa was revoked, he could continue to provide financial assistance to his mother and therefore to the two children. It may be less than if he were in Australia and living with them because he would probably have to pay board or rent for accommodation. He would not be able to live with them unless his mother moved to New Zealand. She has a good job in Australia. While that job may enable her to move to Brisbane, the evidence does not suggest that she could be transferred to New Zealand. If he returned to New Zealand, the applicant may see the children rarely, if at all, before either of them is 18 years old. He could communicate with them via the telephone and the various internet means available, which may permit seeing them on screen.
The Tribunal gives some weight to the likely effect that any separation from the applicant would have on both children. The applicant’s mother said that the older child is close to the applicant. Given the period of physical separation since 2014 and the age of the child, who is now six, the Tribunal gives that evidence little weight.
Taking into account all the above, revocation is not in the best interests of either child.
The applicant has not lived with his father’s family, apart from in 2012. He had visited them before that as set out earlier in this decision. The applicant said that he was in telephone contact with that family, which he can continue if he returns to New Zealand. The Tribunal does not accept that he has any significant relationship with any of those three children.
To the extent that they have had physical contact with their brother from time to time while he was in Australia, and the evidence does not indicate whether there would be such contact if the visa were revoked, and although he has played little part in their lives, the Tribunal finds that on balance it would be in the best interests of each child if the visa were not revoked.
Expectations of the Australian Community
The applicant has breached Australian laws on three occasions, the last of which was the most serious, as set out above in detail and as reflected in the sentences imposed. The Tribunal considers that the nature of the applicant’s offences is such that the Australian community would expect that the applicant should not hold a visa. This consideration weighs strongly in favour of non-revocation of the decision to cancel the applicant’s visa.
Other considerations
The considerations of international non-refoulement obligations, impact on Australian business interests and impact on victims do not arise on the evidence and were not pressed by the applicant or respondent.
Strength, nature and duration of ties to Australia
The applicant has resided in Australia since the end of 2008, more than eight years. He lived in New Zealand until he was 14. He first offended in November 2011, then in March 2012, and most recently May 2014. He has been in prison and immigration detention since then, more than two and a half years, about a quarter of the time he has lived in Australia. The applicant contributed positively to the Australian community when he worked at McDonald’s and as a removalist as detailed earlier in this decision, a total of less than two years. He was also positively contributing to the Australian community while attending school in 2008 to 2011 and in 2012 and while he was actively involved, including as a youth leader, in Hillsong Church in 2009 until early 2011 and from the end of 2012 until mid-2014.

The Tribunal accepts that the applicant has strong ties with Australia with his mother and much less strong ties with her two children. He has ties with his father and his family, who live in Brisbane. He has not seen them often, apart from when he lived with them in 2012. His father did come to Sydney when the applicant went to court in November 2011 and took him back to live in Brisbane for a year to get him away from bad influences and is prepared to give him a job if the visa is not revoked. The Tribunal accepts that the applicant has uncles, aunts and many cousins, mostly in Brisbane. The evidence does not indicate that his ties with them are strong. The Tribunal takes into account his expressed wish when he and his mother came to Australia, that they live in Brisbane with his father and cousins.
A number of people provided references for the applicant. Mr Qereqeretabua has known the applicant since he returned to Sydney at the end of 2012. He provided references and gave evidence in support of the applicant. Several unidentified people also attended the Tribunal hearing showing support for the applicant. The applicant has been involved in the Hillsong Church in Sydney since 2009, although less so during 2011, and not at all while he was in Brisbane in 2012. From 2013 he was a youth leader until he was imprisoned in mid-2014. His ties with the referees varied in duration and strength.
Although unaware of the precise immigration status of the applicant’s parents, step-siblings, Mr Qereqeretabua and the referees and those who attended the hearing, the Tribunal assumes in the applicant’s favour that all of those people have, at least, an indefinite right to remain in Australia.
The Tribunal finds that that the non-revocation of decision to cancel the applicant’s visa would adversely impact most on his mother. He returned to Sydney from Brisbane at the end of 2012 to help her. She has visited him as frequently as she could in the various prisons he was in and since he has been in detention. The Tribunal finds on the evidence that she is emotionally dependent upon the applicant. Non-revocation of the decision to cancel the applicant’s visa would impact adversely to a minor extent on her two young children. The Tribunal finds that non-revocation of the decision to cancel the applicant’s visa would have little impact on his father and the children of his father.
On balance, this consideration weighs in favour of revocation of the decision to cancel the applicant’s visa.
Extent of impediments if removed
The applicant claimed to have no relatives in New Zealand. At the hearing, his mother said that her elderly ill mother lives in New Zealand, as does one of her brothers to whom she is not close and who lives in the country. The applicant is young. There is no evidence that he is not in good health. There are no substantial language or cultural barriers if the applicant returns to New Zealand where he was born, lived, and was educated until he was almost 14 years old. He is now 22.
The suggested impediments if the applicant were removed from Australia were:
·a lack of real employment prospects because he lacks qualifications and has no network; and
·a difficulty of getting housing around Christchurch, according to his mother.
The Tribunal has also taken into account Dr Nielssen’s estimation that the applicant’s overall intelligence is at the bottom of the normal range.
The Tribunal found the claims about a lack of a network and poor accommodation and residential prospects for the applicant to be exaggerated. The Tribunal does not accept that the applicant will not have any support network if he returns to New Zealand. His mother said that she has a number of close friends there with whom she has gone on holiday when she visited, and she travelled there to be with one friend whose mother was dying. Given the close relationship between the applicant and his mother, the Tribunal finds that the applicant’s mother would do her utmost to organise support for the applicant from her friends if he was removed to New Zealand. Given the support the applicant’s father has given him in the past and promised to in the future in Australia, the Tribunal finds that he would also assist his son. Further, the Tribunal accepts that New Zealand has similar social security provisions to those provided in Australia.
The Tribunal considers that there are negligible impediments to the applicant establishing himself and maintaining basic living standards generally available to other citizens in New Zealand. The Tribunal gives this consideration very little weight.
CONCLUSION
For the reasons given above, the Tribunal finds that the considerations favouring non-revocation of the decision to cancel the applicant’s visa strongly outweigh those in favour of revoking the decision.
The Tribunal affirms the decision made by a delegate of the Minister for Immigration and Border Protection on 14 October 2016 not to revoke the cancellation of the applicant's visa under s 501(3A) of the Act.

I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

...............................[sgd].........................................
Associate
Dated: 17 May 2017

Date(s) of hearing: 9 & 10 February 2017

Solicitors for the Applicant: Martin Udall & Associates

Solicitors for the Respondent: Minter Ellison

[2017] AATA 690

17 May 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Jurisdiction

Date(s) of hearing:	9 & 10 February 2017
Solicitors for the Applicant:	Martin Udall & Associates
Solicitors for the Respondent:	Minter Ellison