McLeod and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 400

McLeod and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 400 (4 March 2020)

Division:GENERAL DIVISION

File Number:          2019/8452

Re:Braghan McLeod

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:4 March 2020

Place:Melbourne

The decision under review, being the decision of the Respondent dated 11 December 2019 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa pursuant to section 501(3A) of the Migration Act 1958 is set aside.
In substitution, the cancellation of the Applicant’s visa is revoked under section 501CA(4)(b)(ii) of the Act.

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

Senior Member D. J. Morris

Catchwords

MIGRATION – mandatory cancellation of visa – Class TY Subclass 444 Special Category (Temporary) visa – Applicant is citizen of New Zealand – character test – substantial  criminal record – ministerial Direction No. 79 – primary considerations – protection of the Australian community – nature and seriousness of conduct – risk to the Australian community – best interests of affected minor children – expectations of Australian community – relevant other considerations – strength, nature and duration of ties to Australia – extent of impediments if removed to country of reference – previous cancellation of visa and restoration – is discretion enlivened – decision set aside and new decision substituted

Legislation

Administrative Appeals Tribunal Act 1975, ss 33, 33A
Children, Youth and Families Act 2005 (Vic)

Migration Act 1958, ss 499, 501, 501CA

Cases

Viane v Minister for Immigration and Border Protection [2018] FCAFC 116

FYBR v Minister for Home Affairs [2019] FCAFC 185

Secondary Materials

Child Protection Manual, document ID number 2019 – version 5 – 8 December 2009 (Victorian Department of Health and Human Services)

Migration Act 1958 – direction under s 499 – Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Commenced 28 February 2019)

REASONS FOR DECISION

Senior Member D. J. Morris

4 March 2020

Background

The Tribunal made an order under s 35(3) of the Administrative Appeals Tribunal Act1975 to modify certain parts of this statement of reasons and redact certain information relating to children.  The Tribunal considers that the redaction of this information in the published version of these reasons is desirable.  An un-redacted version of the reasons has been provided to the Applicant and the Respondent.

1. Mr McLeod was born in 1990 in New Zealand and is a citizen of that country. He first came to Australia for a brief visit in late December 2003, but returned to New Zealand about two weeks later in January 2004. He re-entered Australia on 31 December 2006 and was granted a Class TY Subclass 444 Special Category (temporary) visa (the visa), and has resided in Australia since that date. The visa was cancelled on 8 February 2017 by a delegate of the Respondent under s 501(3A) of the Migration Act 1958 (the Act). Mr McLeod made representations to the Department as to why the mandatory cancellation of the visa should be revoked under s 501CA of the Act. On 11 December 2019 a different delegate of the Minister decided not to revoke the mandatory cancellation of the visa. Mr McLeod was notified of the decision on the same day. It is this decision that Mr McLeod has brought to the Tribunal for review.

2. The matter was heard on 25 and 26 February 2020.  The Applicant was represented by Mr John Maloney of counsel, instructed Mr Dushan Nikolic of Carina Ford Immigration Lawyers.  The Respondent was represented by Mr Christopher Orchard of Sparke Helmore Lawyers.  Mr McLeod gave evidence and was cross-examined. 

3. Other witnesses who gave evidence on behalf of the Applicant were his partner, who will be called Ms DM; Ms TM, who is the mother of Ms DM; Ms EW, a friend of Ms DM; Mr EK, a former employer of the Applicant; Ms RA, aunt of the Applicant; and Mrs SW, the mother of Ms EW. The last two witnesses appeared by telephone by leave of the Tribunal under s 33A of the Administrative AppealsTribunal Act 1975 (the AAT Act). Mr Warren Simmons, clinical psychologist, also gave expert evidence.

4. The Tribunal admitted into evidence a volume of ‘G’ documents (GD) (Exhibit R1); a volume of supplementary ‘G’ documents (SG) (Exhibit R2) and a volume of further supplementary ‘G’ documents (FSG) (Exhibit R3), all collated by the Respondent.  The Applicant tendered the following documents, which were admitted into evidence:

   -Statutory declaration of the Applicant dated 11 February 2020 (Exhibit A1);

   -Report of Mr Warren Simmons, clinical psychologist, dated 10 February 2020 and letter of instruction from the Applicant’s solicitors (Exhibit A2);

   -Statutory declaration of DM, dated 3 February 2020 (Exhibit A3);

   -Written Statement of TM dated 6 February 2020 (Exhibit A4);

   -Written statement of RA dated 20 January 2020 (Exhibit A5);

   -Statutory declaration of EW dated 22 January 2020 (Exhibit A6);

   -Written statement of EK dated 16 February 2020 (Exhibit A7); and

   -Statutory declaration of SW dated 21 January 2020 (Exhibit A8).

5. The Tribunal also had regard to Statements of Facts, Issues and Contentions from both parties, and a statement in reply from the Applicant.

   The relevant legislative framework

6. Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or the Minister’s delegate) must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of section 501(6)(a) of the Act, and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State or a Territory.

7. Section 501CA(4) of the Act provides that a decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period, and the decision-maker determines that the Applicant passes the ‘character test’, or there is another reason why the mandatory cancellation decision should be revoked. The Respondent conceded that Mr McLeod had made representations within the prescribed period.

8. If the Tribunal finds that Mr McLeod fails the character test, the sole task before the Tribunal then becomes whether there is another reason why the original decision to cancel the visa should be revoked. In undertaking this task, the decision-maker should examine the factors for and against revoking the cancellation and if satisfied that the cancellation should be revoked, the Tribunal, standing in the shoes of the Minister, must act on that view.  A useful elaboration of the process can be found in the remarks of Colvin J in Viane v Minister for Immigration and Border Protection [2018] FCAFC 116, where His Honour said, at [64]:

   There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.

   Evidence in relation to the character test

9. The Tribunal had before it a Criminal History Check document provided by the Australian Criminal Intelligence Commission dated 19 March 2019 (GD, pp 25-28).  This document stated that on 9 April 2013 at the County Court of Victoria in Melbourne Mr McLeod was convicted of the offence of Armed robbery.  He was sentenced to 8 years’ imprisonment.

10. Also before the Tribunal were the sentencing remarks of His Honour Judge Chettle in the County Court on 9 April 2013 (GD, pp 29-40).  The Judge referred to the Applicant’s conviction by a jury on one charge of armed robbery and passed a sentence of eight years, with eligibility for parole after five years, and declared that 316 days of that sentence had already been served by way of pre-sentence detention. 

11. The Tribunal notes that Mr McLeod’s counsel conceded in his written submissions that the Applicant did not pass the character test.

    Finding in relation to the character test

12. On the basis of this evidence, and because of the operation of section 501(6)(a) on the basis of section 501(7)(c) of the Act, the Tribunal finds that Mr McLeod fails the character test in section 501(3A) of the Act. The remaining task for the Tribunal is to determine whether there is ‘another reason’ why the mandatory cancellation of the visa should be revoked.

    The ministerial direction - Direction No. 79

13. Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. At the time of the decision not to revoke the cancellation of the Applicant’s visa, the decision-maker consulted Direction No. 79 (‘the Direction’). The Tribunal must, under section 499(2A) of the Act, comply with the current Direction in considering this matter.

14. Paragraph 6.1 of the Direction states, in part:

    6.1Objectives

    (1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

    …

    (3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

15. The Direction includes the following principles at paragraph 6.3:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.

    (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

16. In deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community.’  Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations;’ ‘Strength, nature and duration of ties;’ ‘Impact on Australian business interests;’ ‘Impact on victims;’ and ‘Extent of impediments if removed.’

17. The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (paragraphs 8(4) and 8(5)). The Tribunal has considered each of the primary considerations and, as relevant, the other considerations.

    The offending which triggered the visa cancellation

18. Judge Chettle outlined the circumstances which lead to the conviction for the offence of armed robbery against Mr McLeod (GD, pp. 30-31).  In July 2010 the Applicant and a co-offender visited a person His Honour described as a small time drug dealer at his house.  A female associate had sent messages to the drug dealer arranging to meet him early in the morning, saying that she wanted to obtain some ‘speed.’  When the victim opened the door, he found Mr McLeod and the co-offender at the door, with the associate some distance back.

19. They had brief discussions about a drug deal.  They then grabbed the victim, and put a knife to his throat, demanding drugs.  The victim pushed the knife away from his throat and as he struggled with the Applicant, the co-offender walked up to him and stabbed him in the side of his chest, and went to stab him again, but he blocked the blow with his arm.  The victim said he would get the ‘speed.’

20. The co-offender then escorted the victim to his bedroom with a knife at his back and the victim gave the co-offender a bag containing amphetamine.  The Applicant and his co-offender both then fled the premises.  The victim’s mother called the police and an ambulance.  The victim suffered a stab wound to the right pectoral muscle and another to the left forearm.  The chest wound was eight centimetres deep and required six staples.

21. Judge Chettle’s sentencing remarks encapsulate, in abridged form, Mr McLeod’s personal background:

    Turning to you, McLeod, you are now 22 years of age, being born on 12 July 1990.  Your background is set out in Exhibit M1, the report of psychologist David Ball.  You were born in New Zealand of Maori descent and you have a half-sister.  You experienced a chaotic and dysfunctional family life as a young man, characterised by the absence of your biological father, drug addiction and domestic violence.  Your biological father left you before you could really remember anything of him and you have had little contact with him since the age of three as a child.

    You left home at the age of 14 and lived with your grandmother, attending school in New Zealand to Year 8.  You were a poor student, had learning difficulties, you experienced social and disciplinary problems and you were expelled at the beginning of Year 9.  You have a very short employment history where you have worked apparently as a concrete labourer for some six months.  You started drinking alcohol [at the] age of 11, using methylamphetamine at 13, abusing Xanax and started using heroin at the age of 20.  You have been addicted to all three substances except for the periods of time when you have been in custody. You apparently prefer methylamphetamine as you drug of choice.  You admit your dependence to that drug.

    As you have heard, you have a lengthy criminal history and you attribute you[r] prior offending to your drug addiction.  You have a history of rapid relapse into drug addiction and offending upon release from custody.

    You came to Australia firstly in 2003 but you are still a citizen of New Zealand.  You admitted to Mr Ball that you committed the armed robbery for which I am to sentence you.  You claimed you attended to obtain the methylamphetamine you needed.  You professed remorse for your conduct to Mr Ball, these expressions are difficult to reconcile with your plea of not guilty at the trial.

    …

    You have been in a relationship with [DM] since July 2010.  She described you as a loving partner to her and her six year old daughter.  You have a daughter, [M], now six weeks old. 

22. His Honour then referred to an earlier hearing Mr McLeod had before this Tribunal (differently constituted) relating to an earlier decision by the Minister to cancel the visa.  On that occasion the Tribunal set aside the visa cancellation.  The Respondent sought judicial review of the Tribunal’s decision by the Federal Court.  The Court affirmed the decision of the Tribunal.

23. [Paragraph redacted]

    The Applicant’s earlier offending in Australia

24. Osborn JA set out Mr McLeod’s offending history in the judgment of the Court of Appeal of the Supreme Court of Victoria on 11 September 2013 (McLeod v The Queen [2013] VSCA 245. His Honour said, at [8]-[9]:

    He has some 77 prior convictions including 13 for armed robbery and three for attempted armed robbery.  The sentencing judge misstated his history in part by saying that McLeod had six appearances before the Children’s Court when in fact he had had only four appearance[s] between November 2007 and January 2009.  In my view, this error was immaterial.  His Honour elaborated the convictions which he regarded as most significant at [12]-[14] of his reasons.  It is not disputed that McLeod had 13 convictions for armed robbery and three for attempted armed robbery.  In addition, he had convictions for assault, assault police, false imprisonment, recklessly cause injury (two), reckless conduct endangering serious injury, recklessly cause serious injury and reckless conduct endangering life (two).  The sentencing judge was entirely correct to characterise McLeod as a ‘very violent and dangerous young man’.  That view was also consistent with the psychologist’s report before his Honour which confirmed McLeod suffers from ongoing anger problems.

    The sentencing judge was also correct to specifically identify the fact of recurrent convictions in November 2007, June 2008 and January 2009 as significant and to point out the nature of the convictions on the last occasion, saying:

    On 12 January 2009, you were before the [redacted] Children’s Court on theft of a motor vehicle, three charges, nine charges of armed robbery, two charges of attempted armed robbery, charges of recklessly cause serious injury, false imprisonment, recklessly causing injury, two further counts of armed robbery and another three charges of recklessly causing serious injury and were ordered to be detained at a Youth Justice Centre for a period of 12 months.

    (Footnotes omitted.)

    ORAL EVIDENCE
    The Applicant

1. Mr McLeod told the Tribunal he was born in the New Zealand port town of Tauranga in 1990.  When he was very young, his father left the family home.  His mother commenced a relationship with a new partner, who Mr McLeod described as his stepfather.  They subsequently had two more children, a boy and a girl.  Mr McLeod said he did see his biological father occasionally after he left the home, but not often and they have no current relationship.

2. The Applicant described a turbulent relationship with his stepfather.  He said he felt he was ‘walking on eggshells, scared, afraid to put a foot wrong.’  He said he was subject to physical and verbal abuse.  He said initially the abuse was just verbal, but it escalated when he was aged around seven and involved being hit with belts, kettle cords, being slapped across the face and kicked.  He said he also witnessed conflict between his mother and stepfather and remembered one occasion where his stepfather tried to run her down with a car.  He said that he knew there were other instances of violence between them, but he was usually sent to his room so he heard, but did not see, it.

3. When he was aged about 13, Mr McLeod said his mother decided he should go and live with his paternal grandmother.  He assumed it was because of the dysfunctional nature of the household.  He said his grandmother lived in the same town and for the first time he felt loved and safe.  He said he felt better about himself and remembers that period of his life with fondness.

4. Mr McLeod said he lived with his grandmother for close to two years until she passed away just before his fifteenth birthday.  He said he then felt abandoned and started ‘acting out,’ associating with older cousins who were gang members and began using drugs, mostly marijuana and occasionally methamphetamine.

5. He said he then went to live with his maternal grandmother who he described as a ‘good lady’ but who had difficulty handling his behaviour.  He said in 2006 his mother decided he should go to Australia to start afresh, to live with an aunt and uncle.  Initially, Mr McLeod said, his life settled down.  He became involved in an alternative education program, with classes in the morning and activities in the afternoon.  He said he stopped using drugs and worked for a time for a business fitting doors and windows.

6. Mr McLeod said he met some other young people at the alternative education program and started using drugs again and began offending, breaking into cars to get money and items to sell, so he could purchase drugs.

7. He said the business he worked for closed down.  He then briefly worked doing roof tiling but stopped going to work and started ‘hanging out’ with his friends.  On one occasion when his aunt and uncle had to come to the police station to pick him up, Mr McLeod said his aunt kicked him out of home.  He said that he then contacted a cousin who lived at Hoppers Crossing who helped him get a job, which he held for around four months.

8. He said that he then re-engaged with his group of friends and ‘went downhill again, started using meth.’  At this time he was aged around 17.  He said that he was sleeping at friends’ houses, ‘couch-surfing,’ for months.

9. Mr McLeod said he was detained at the Youth Justice Centre and undertook some mandatory courses.  He met a person who was head of education there, and became friends with her.  He said this person helped him get off drugs.  He then went to live with another aunt, RA.

10. Mr McLeod told the Tribunal his visa was cancelled because of his offending.  He was detained at the Maribyrnong Immigration Detention Centre (MIDC).  He applied to the Tribunal for review of the cancellation of the visa and, as is set out above, the Tribunal set aside the cancellation decision.  Mr McLeod said that when he left MIDC he ran into an old friend and ‘one thing led to another.’  He said he started using drugs again and drinking to excess.

11. Mr McLeod said that the last time he used illicit drugs was in 2010, that he has been subject to regular urinalysis in prison and has never returned a positive result.  He said that drugs were available in the prison environment but that he had not availed himself of them.  Mr Orchard, for the Respondent, took him to a memorandum from the Victorian Corrections authorities which recorded that while he was on remand at the Melbourne Remand Centre (MRC) in 2011 he ‘conspired with another prisoner and visitor to traffic drugs into MRC, resulting in separation, a guilty verdict and a fine’ (GD, p 323).  Mr McLeod responded that he did not conspire with anyone. He recalled having a governor’s hearing and going into isolation for a month but said he was never charged with any offence.

12. The memorandum also refers to ‘2 half pills of anti-psychotic and anti-depressant medications’ being found in the Applicant’s cell in November 2013, resulting in a guilty verdict and a fine.  Mr McLeod said he was having trouble sleeping and another prisoner had given him the pills.  He had forgotten he had them, and they were found during a routine search. 

13. The Applicant told the Tribunal about two courses he had undertaken in prison, a High-risk Violence Intervention Program (VIP) and a 44-hour Drug & Alcohol Program. He said that the VIP was a programme about improving coping skills, thinking processes and how to handle emotions.  He said it was an intensive programme conducted over a nine-month period, four days a week.  Mr McLeod said he had completed the VIP in 2016, and found it very useful.

14. Mr McLeod said he had been given certain positions of responsibility in the prison, centred on the prison kitchen.  He said that he had been permitted to have residential visits from Ms DM, their daughter, M, and Ms DM’s daughter, T.  He said there is a part of the prison set up for such visits, which includes bedrooms, and a sitting room equipped with toys for children.  The purpose of the facility is to provide a family environment for prisoners with families.  Mr McLeod said that good behaviour and being ‘incident-free’ was a condition before such residential visits were granted.

15. Mr McLeod said that his ‘whole mindset’ is different from when he came into prison.  He said he was older now and had matured. He said ‘I now have a lot to lose, regardless of which country I end up in’ because of his partner and the two children.  Mr McLeod told the Tribunal that when he commenced a relationship with Ms DM in 2010, her daughter T was only aged 3 and he had effectively become a father-figure to her, as her own biological father had ‘left the scene’.

16. Mr McLeod told the Tribunal that although he met Ms DM around the time of his offending in mid-2010, after his arrest he had been released on bail for a period of eight months.  He had lived together with Ms DM and T during that period, and had built a strong bond with T.  He said that he had not had a serious relationship with anyone before he met Ms DM.

17. In respect of his daughter, M, Mr McLeod said she had been born in January 2013 while he was in custody on remand.  He first met his daughter in Geelong when he had been taken there because of a court hearing when the Judge was on circuit.  He said that he sends cards each week to M and T [passage redacted].  Mr McLeod said that he had made many soft toys for each of the children in the prison workshop.

18. [Sentence redacted] He said that Ms DM’s mother, Mrs TM, had offered him a job in her takeaway food shop if he is allowed to stay in Australia, and that he had had a lot of support from his aunt, RA.

19. Mr McLeod was asked if he had given thought about what effect there would be on his relationship with Ms DM and the children if he was repatriated.  The Applicant said it would be devastating because Ms DM could not relocate to New Zealand [passage redacted].

20. Mr Orchard took Mr McLeod through the summary of offences which are outlined above. He said the dominant reason for robbery was to obtain money or saleable items for drugs. On occasions where there was violence inflicted by co-offenders after victims had handed over money or possessions, Mr McLeod said ‘I don’t have any good excuse for that.’

21. He admitted that a number of the crimes for which he has been convicted involve serious violence.  He accepted that, while he had not specifically targeted female victims, there were female victims who he had robbed.

22. In terms of a conviction for offence of Assault police on duty in 2010, Mr McLeod said an officer came to interview him at MRC and had made a comment about T which he found very offensive, so he had spat on the officer, which had led to the charge.

23. In terms of the offence which triggered the visa cancellation, Mr McLeod confirmed that he went to visit the drug dealer with the intention of robbing him, and agreed that he grabbed the victim and had held a knife to his throat, but that he did not expect his accomplice to suddenly stab the victim.

24. Mr McLeod said he agreed that he pleaded not guilty at the time, because he did not want to accept the charges.  Mr McLeod was taken through various statements he made to the Tribunal in 2009 about undertaking courses and having matured, and agreed that he nevertheless had gone on to re-offend.

25. In terms of family in New Zealand, the Applicant said that he had a half-sister who still lives in Tauranga who is married with her own family.  He said he had no contact with his half-brother who still resides with his mother.  He said that, if he is returned to New Zealand, he thought his half-sister would ‘take him in,’ at least on a temporary basis.

26. Mr McLeod said that the courses he has undertaken in prison have given him a greater understanding of the motivation behind his conduct.  Mr Maloney pointed out that he had family members around him in 2009 but went on to commit offences, and asked the Applicant what was different now.  Mr McLeod said that having his own family is very different, because he felt that Ms DM, and M and T depend on him for support.

    Mr Simmons

27. Mr Warren Simmons gave expert evidence.  He said that he had interviewed Mr McLeod on two occasions in the preparation of his psychological report, which was before the Tribunal.

28. Mr Simmons said that he had administered a Violence Risk Assessment Guide (VRAG) actuarial test to Mr McLeod, which had resulted in a rating of ‘19.’  In his report Mr Simmons wrote:

    Mr McLeod’s score on the VRAG was 19 which places him at a high probability of reoffending.  It should be noted that this is based on static factors and does not take into account dynamic factors such as changes in marital status, health status or treatment gains from interventions.

29. In his oral evidence, Mr Simmons said that studies had shown the influence of partners can reduce risk of re-offending and his opinion was that Mr McLeod considered his relationship with Ms DM more important than any relationships with peers, and that he ‘wants to impress her.’  Mr Simmons said studies also showed that offending starts decreasing around the age of 30 for persons who have committed offences such as theft or burglary.

30. Mr Simmons said that during his examination of Mr McLeod, the Applicant claimed not to have used drugs since entering custody.  Mr Simmons said that he was aware of one infraction recorded in the memorandum but had no reason to doubt the Applicant’s claims, given the regular urinalysis to which Mr McLeod has been subjected.

31. Mr Simmons said that in his view the ten year period of drug abstinence is a significant period but tempered that with the observation that Mr McLeod has been in custody for the majority of that period.  Mr Maloney asked him his opinion about Mr McLeod’s relationship with his daughter and T [modified].  Mr Simmons said that this relationship was a positive factor in relation to a risk of re-offending because Mr McLeod, in his view ‘wants to be a father in the way his father wasn’t.’

32. Mr Simmons said having family and supportive people around the Applicant would be a positive factor if he is released and remains in Australia, but there will have been a degree of institutionalisation, and care will have to be taken, otherwise there is a tendency for a former prisoner to drift back into bad conduct.  He said he believed that employment, particularly stable employment, would be of assistance in meeting these challenges.

33. Under cross-examination, Mr Simmons was asked what his opinion was of the previous psychological assessment undertaken before sentencing by Mr Ball.  Mr Simmons said that he had read Mr Ball’s report and had no argument with any of its content, but stressed that that was a statement of what was the situation ten years ago when Mr McLeod was an adolescent.  He said that there has since been a decade of further interventions and less impulsivity.  Mr Orchard said to Mr Simmons that the Applicant had a family environment when he re-offended, and Mr Simmons responded that was a positive factor but in his view Mr McLeod’s age was a more important factor, because he could not see the consequences of his actions.

34. Asked directly by the Tribunal about the part of the VRAG relating to the subject being in a relationship, Mr Simmons said that was not provided for in the actuarial tool, because it must be applied at the specific time of the ‘index offence’ (i.e. in this case the armed robbery).  He said that the VRAG in his view is accurate at a point in time but is not an exhaustive measure.  He confirmed to the Tribunal that his conclusion was that there is a high risk of re-offending but that was subject to moderating factors that may reduce it to a moderate risk of re-offending.

    Ms DM

35. Ms DM said that she first started dating Mr McLeod in 2010.  She said that she had some idea of his criminal history before she met him, because she knew the Applicant’s cousin.  She said that she quickly had introduced him to her daughter, T, and he met her mother, Mrs TM.  Ms DM said that Mr McLeod was arrested when he was at her house. She said she did not immediately appreciate what was going to happen, until later.  Ms DM said that she made a conscious decision to continue the relationship, and it has continued since that time.

36. Ms DM said she did not see Mr McLeod using drugs at the time they commenced their relationship.  She said she had visited him regularly in prison but not as regularly as she would wish because of the distance of the prison from Melbourne and having to deal with small children.

37. She said that after his arrest, Mr McLeod had been bailed and they lived together for about eight months.  She said that he re-entered custody in November 2012 when his and his co-offender’s trial commenced.  By this time she was pregnant with their daughter, and M was born in January 2013.

38. [Paragraph redacted]

39. [Paragraph redacted]

40. [Paragraph redacted]

41. Asked directly whether she would be able to relocate to New Zealand, if Mr McLeod’s visa is not restored, Ms DM said that [passage redacted] it would be very disruptive to her children T and M, and would separate them from their grandmother and other familial support.

42. Ms DM gave evidence about residential visits to Mr McLeod in prison, accompanied by T and M.  She said that T regarded the Applicant as her father, because Mr McLeod has been the only father-figure in T’s life.  She said that T’s biological father only sees his daughter around once a year and she had not discussed with him any prospect of her moving to New Zealand with the children.

43. Under cross-examination, Ms DM said that the reason Mr McLeod pleaded not guilty was because his co-accused had decided so to plea, and he did not want to get his co-accused into trouble because they were being tried together.  Ms DM’s view was that Mr McLeod was ‘insane’ to have pleaded not guilty for this reason.

    Mrs TM

44. Mrs TM, the mother of Ms DM, gave evidence that she first met Mr McLeod in mid-2010 through her daughter.  She said she always found him courteous and kind but he was young, and he has since grown up and matured.  Mrs TM said she considered that Mr McLeod was more reflective and she was aware that he had completed courses on how to deal with emotions and handle challenging situations.  She had discussed the outcome of these courses both with Ms DM and with the Applicant on the telephone.  Mrs TM said she had seen Mr McLeod in prison.

45. Ms TM said that she has her own takeaway food shop in a Melbourne suburb.  She said she would be happy to employ Mr McLeod if he is allowed to remain in Australia; she told the Tribunal that she employs three others, as needed.

46. Ms TM said she was aware of the not guilty plea and was of the view that Mr McLeod, in pleading this way, had been loyal to a person who did not deserve it.

    Ms RA

47. Ms RA, the Applicant’s aunt, gave evidence by telephone.  She said she had known Mr McLeod all his life.  She confirmed that she had given evidence at the previous hearing the Applicant had before the Tribunal in 2009.

48. Ms RA gave evidence to the Tribunal about Mr McLeod’s challenging upbringing and how he came to Australia after being in the successive care of grandparents.  Ms RA said that she has regular telephone conversations with Mr McLeod and he focusses on T and M and what is happening in their world.

49. Ms RA said she felt Mr McLeod had changed in his attitude and goals, simply wants a regular life with his family, and ‘has basically grown up.’  When asked under cross-examination about the previous cancellation of Mr McLeod’s visa and the process around that which led to its restoration, Ms RA said that while she had provided a letter of support and Mr McLeod went on to re-offend, she was now of the view that he has significantly matured, saying ‘he now has a young family, he’s not thinking about himself anymore.’

    Ms EW

50. Ms EW, who is a long-standing friend of Ms DM, gave evidence.  She said that she had observed interactions of T and M with the Applicant and the strong relationship between Ms DM and Mr McLeod.

51. [Paragraph redacted]

    Mr EK

52. Mr EK, who is a former employer of Mr McLeod, gave evidence.  He told the Tribunal that he is also a cousin of the Applicant and has known him all his life.

53. Mr EK said that he was aware of Mr McLeod’s upbringing and that he had seen the Applicant change significantly over his time in prison, through visits and frequent telephone discussions.  Mr EK said that he believed Mr McLeod has a new outlook on life and had spoken about ‘restoring his family and restoring himself.’

54. Mr EK reiterated that he was prepared to offer employment to Mr McLeod if he is permitted to remain in Australia.  Mr EK said he owns a concrete slab business, laying foundation slabs for buildings.  He said that Mr McLeod had worked for him in the past for a period and he found him a good worker.

    Ms SW

55. Ms SW, the mother of Ms EW, gave evidence by telephone.  She said that she had known Ms DM for a long period through her daughter but did not know Mr McLeod personally.  She said the reason she wanted to give evidence at the hearing was on behalf of Ms DM because she felt that the Applicant providing a father role to T and M,[passage redacted] was very important and that Ms DM could not ‘pick up and move’ to New Zealand if Mr McLeod’s visa was cancelled.

    CONSIDERATION OF THE DIRECTION

56. As mentioned above, the relevant part of the Direction in relation to non-citizens seeking revocation of the mandatory cancellation of a visa is Part C.

    Primary consideration – Protection of the Australian community (paragraph 13.1)
    The nature and seriousness of the non-citizen’s conduct (paragraph 13.1.1)

57. The Direction requires decision-makers to consider a number of factors including the fact that violent crimes are viewed very seriously, the frequency of a person’s offending and whether there has been any trend of increasing seriousness and the cumulative effect of repeated offending.

58. The Tribunal must also take into account whether the non-citizen has re-offended since being made aware of the consequences of further offending in terms of the person’s migration status.

59. Each of these factors may be considered to go against Mr McLeod.  He has participated in violent crimes on a number of occasions.  He has frequently offended, as was starkly pointed out by Judge Chettle in his sentencing remarks in 2013.  There has been a cumulative effect of repeated offending.  When Mr McLeod’s visa was previously cancelled, he went through the process of making representations to the Respondent’s delegate for its restoration and then taking the matter to this Tribunal.  He was successful in that process, and the decision to restore the visa was upheld by the Federal Court.  However, in the course of that, Mr McLeod made serious commitments about his future conduct, and promises, which evaporated not long after when he participated in the armed robbery in 2010.

1. During the hearing, Mr Maloney urged the Tribunal to be cautious in what particular conduct was ascribed to Mr McLeod in circumstances where he was committing offences as part of a group.  The Tribunal has read carefully through the summaries of offences and other relevant papers relating to the past offending.  It is true that Mr McLeod has rarely been the perpetrator of the violence. That has been left to others.  However, it is also true that he has been involved in appalling conduct.

2. [Paragraph redacted]

3. While Mr McLeod may not generally have committed some of the gratuitous violence that his co-offenders did, he stood by and essentially abetted that behaviour.

4. The Direction requires the Tribunal to consider the risk to the Australian community should the person commit further offences or engage in other serious conduct.  The Tribunal must have regard, cumulatively to:

   The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

5. The nature of the harm to individuals, or to the Australian community, given the nature of Mr McLeod’s past offending, is obvious.  If that were to continue, the harm would be significant.

6. In terms of the likelihood of Mr McLeod engaging in further criminal conduct, Mr Simmons’ psychological assessment is an important piece of information.  He states:

   …Mr McLeod’s risk of further offending is in the high range.  This is based on a pattern of behaviour that occurred during his adolescence and early adulthood, which are historical factors contributing to the risk of further offending.  However, Mr McLeod has spent a long period incarcerated and there are several factors which have an impact in decreasing his risk of further offending.  These are his age, as offending behaviour generally decreases as one nears the age of 30.  Offending is also decreased when one has a long-term relationship with a partner who does not use drugs nor offends, and is also reduced in the context of parenthood.  In Mr McLeod’s case, these factors would reduce his risk of offending upon release.

   There is no doubt that Mr McLeod’s previous peer group as well as substance use were significant factors in his offending and therefore, should he not re-contact them and remain substance free, then this would also reduce his risk of offending.  In fact given their significance, should these factors not be present, then Mr McLeod’s risk of offending may decrease from high to moderate.

7. Mr Simmons goes on, later in his report, to state:

   Mr McLeod’s ability to live an offence free life can only be tested by his return to the community.  At the present time, he is in such a structured environment that there is little opportunity for him to demonstrate the changes he has made.  Certainly, it is understood that there have been no incidents while he has been in custody nor other management problems. 

8. The Tribunal found Mr Simmons’ evidence valuable.  His conclusion was that, in terms of his ‘static’ assessment, Mr McLeod was at a high risk of re-offending but that dynamic factors would reduce that risk, potentially to a moderate risk.  The dynamic factors that he identified are the maturing of the Applicant, the fact that he has now been in a long-term, stable relationship with Ms DM, the fact that he is now a father; and the fact that he has maintained his abstinence from drugs, as shown through urinalysis.

9. It would seem to the Tribunal that Mr McLeod’s conduct in prison has in general been satisfactory.  The Tribunal has considered the memorandum of infractions, and notes that the only disciplinary record in the last more than six years (i.e. since November 2013) was a reprimand in February 2018 for failing to put a t-shirt on when walking in the yard.  Mr McLeod told the Tribunal he had shed his t-shirt while exercising on a hot day.

10. It would seem to the Tribunal that the protective factors that now exist which did not adhere at the time of the offending in 2010 may fairly be seen to reduce Mr McLeod’s risk of re-offending from a high risk to a moderate risk.

11. The Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of the visa.

    Primary consideration  - the best interests of minor children in Australia affected by the decision (paragraph 13.2)

12. The Tribunal must make a determination about whether revocation is in the best interests of a relevant minor child.  If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ. 

13. In terms of relevant minor children, the Tribunal finds that on the submissions from parties before it, the children who are relevant are: the Applicant’s daughter, M; and Ms DM’s daughter, T [passage modified and redacted].

14. In respect of M, the Direction states that less weight should generally be given if there have been long periods of absence or limited meaningful contact with the child.  Mr McLeod was already in custody when Ms DM gave birth to their daughter. He said that the first time he saw her was when Ms DM brought her to a police station when he was awaiting a court appearance.  However, the Tribunal notes that the Applicant and Ms DM have taken a number of other steps to ensure that, with the geographical barrier, a meaningful relationship has been able to be maintained between Mr McLeod and his daughter.  These have included residential visits, where M accompanied her mother to the prison for contact visits with her father, and frequent phone calls.  Ms DM said that Mr McLeod writes a card each week to each of the children, and gave evidence about the many toys he has made in the prison workshop for them.

15. The Tribunal finds, in respect of M, that her best interests would be served by the revocation of the mandatory cancellation of the visa.

16. In respect of T, while she is not Mr McLeod’s biological daughter, he has been involved in her life since he commenced his relationship with Ms DM in 2010, when T was aged 3.  She is now 13.  For around eight months before he was sentenced, Mr McLeod lived with Ms DM and T and had daily interactions with her in a regular family setting.  Ms DM described activities such as visits to the Royal Melbourne Show and to the snow.  As T is older than M, it would seem to the Tribunal that her relationship with Mr McLeod has been, if anything, more significant.  Apart from Ms DM, several other witnesses volunteered to the Tribunal that T regarded Mr McLeod as ‘her dad.’

17. The Tribunal finds that the best interests of T would be served by the revocation of the mandatory cancellation of the visa.

18. [Paragraph redacted]

19. [Paragraph redacted]

20. Overall, the Tribunal considers that there is no evidence that Mr McLeod’s past criminal conduct, including some violent conduct, has manifested in any detrimental way in terms of his relationship with any of the children and that, provided he does not re-offend, he would be likely to play a positive role in their lives, owing to the strength of his relationship with Ms DM.  

21. Cumulatively, the Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa.

    Primary consideration – Expectations of the Australian community (paragraph 13.3)

22. The Direction states, at paragraph 13.3(1), as follows:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

23. FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’) considered this paragraph in the predecessor to the current Direction, but the wording is the same.  In that case, two of the three judges (Charlesworth and Stewart JJ) held, in separate judgments, that this part of the Direction expresses a ‘norm’. Decision-makers should not make their own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views.  They are not presumptions or values that may be somehow ascertained or deduced by some other independent evaluative process.

24. In FYBR, Stewart J stated, at [100]-[101]:

    To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:

    ·non-citizens will obey Australian laws when in Australia;

    ·it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere.

    ·in a particular case, the refusal of the visa may be appropriate simply because of the nature of the character concerns or offences is such that they should not be granted a visa.

    Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive”.

    (Emphasis added.)

25. His Honour went on to state (at [102]) that the character assessment, even through the prism of community expectations, may not be decisively against an Applicant, which is why the decision-maker must assess what is ‘appropriate’ in the particular circumstances.

26. In the case of Mr McLeod, the Tribunal considers that the breaches of the law of which he has been convicted are serious.  They involve robbery and theft, in company, of strangers and a particularly unpleasant robbery of a victim in his home. 

27. The Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of the visa.

    Other consideration – International non-refoulement obligations (paragraph 14.1)

28. The Respondent submitted that this consideration was not engaged, and counsel for the Applicant did not demur.  The Tribunal notes that this consideration is engaged when Australia’s international convention obligations are, or may be, enlivened.  Mr McLeod is a citizen of New Zealand and, while he was apprehensive about the possibility of inviting attention from gangs if he is repatriated, he made no other claims relating to exposure to personal harm if he is returned there.

29. The Tribunal finds that this other consideration is not engaged, and therefore weighs neutrally.

    Other consideration – strength, nature and duration of ties [to Australia](paragraph 14.2)

30. The Direction requires the Tribunal to have regard to how long a person has resided in Australia, including whether they arrived as a young child, noting that less weight should be given where the non-citizen began offending soon after arriving in Australia and more weight should be given to time the non-citizen has spent contributing positively to the community.

31. The Tribunal must also consider the strength, duration and nature of any family or social links with Australian citizens or persons with an indefinite right to remain in Australia including the effect on the person’s immediate family in Australia.

32. The Respondent in his written submissions stated that Mr McLeod arrived in Australia as a ‘young adult’, and reiterated that in the hearing.  This is factually wrong.  The movement records show that Mr McLeod arrived in Australia in December 2006, on the second occasion, and has resided here since that time (SG, p 31).  He was aged almost 16 and a half when he arrived, and was not an adult.  Yet it is also a fact that he was over the age of criminal responsibility for all of his offending in Australia.

33. The Applicant’s first recorded court appearance was at the Children’s Court in November 2007, just less than a year after his arrival.  He has been to court nine times thereafter.  He has had sporadic employment, but only for short-periods, on his own evidence.  There is no evidence before the Tribunal of any particular positive contribution he has made to the community.

34. On the evidence, Mr McLeod has strong family links with a number of Australian citizens, namely his partner, Ms DM, her daughter, T, their daughter, M, his aunt and cousin, Ms RA and Mr EK, and Ms TM, the mother of his partner.  There would be a significant effect on this group of people if the Applicant were to be repatriated.  The most significant effect would be on Ms DM and, even though of young age, M.  There would also be a significant effect on T.  It can be assumed that there would also be an effect, though not as significant in impact, on Ms RA, Mr EK and Mrs TM.

35. It would seem on all the evidence that Mr McLeod’s ties with his former birthplace are tenuous.  He said that his half-sister would probably take him in, if he returns to Tauranga.  He said that he has no contact with his mother, half-brother or stepfather.

36. The Tribunal finds, balancing all of these factors, that this consideration weighs in favour of revoking the mandatory cancellation of his visa.  That weight is lessened by Mr McLeod’s embarking on offending relatively soon after his arrival in Australia, but then increased by the effect on his immediate family if he is returned, which would be powerful.

    Impact on Australian business interests (paragraph 14.3)

37. The Tribunal must consider the effect on Australian business interests if a non-citizen’s visa cancellation is not revoked, noting that an employment link would only generally be given weight where non-revocation would significantly compromise the delivery of a major project or important service in Australia.  Mr McLeod gave evidence about some employment positions he had, for relatively short periods, before his going into custody.  None of these placements rise, in the Tribunal’s estimation, to a level that would invoke this consideration.

38. The Tribunal finds that this other consideration is not engaged and consequently weighs neutrally.

    Impact on victims (paragraph 14.4)

39. This other consideration is only relevant when there is information before the Tribunal that victims of a non-citizen’s offending are aware of the person’s immigration status and have expressed a view.

40. While there were references to victim impact statements being made by the victim of the armed robbery and his mother, they do not relate to Mr McLeod’s immigration status.  The Tribunal therefore finds that this other consideration is not engaged and consequently weighs neutrally.

    Extent of impediments if removed (paragraph 14.5)

41. The Direction exhorts the Tribunal to consider the extent of any impediments a 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. The Tribunal should take into account the person’s age and health, any substantial language or cultural barriers and any social, medical and economic support available to them in that country.

42. Mr McLeod is in good health; there was no evidence to the Tribunal to the contrary.  He would find no language or cultural barriers placed in his way if he returns to New Zealand.  As a citizen of that country, he would be entitled to avail himself of the social security and public health systems, in common with other citizens.

43. Mr Simmons remarked in his report that Mr McLeod was concerned that, should he be repatriated, his previous gang affiliations may leave him vulnerable to retribution ‘as he left New Zealand without the appropriate permissions as often exist in gang culture”.’ 

44. The Tribunal does not find this claim, which was somewhat reiterated by the Applicant in his oral evidence and written submissions, particularly compelling.  It has been some 16 years since he left New Zealand as a teenager. There was no corroborative evidence before me about the gang of which he says he was a nascent member.  In any event, if he is repatriated he can live in any part of New Zealand, he is not compelled to return to Tauranga, if he felt that there might be some local pressures there.

45. The Tribunal accepts that the Applicant would face emotional hardship if he is returned to New Zealand, especially because of the separation from his family.

46. The Tribunal finds that this consideration weighs slightly in favour of revoking the mandatory cancellation of the visa.

    Other matters

47. The Direction provides a framework for consideration of these types of reviewable decisions, and includes some matters that must be mandatorily taken into account by a decision-maker. The Tribunal is, however, not constrained only to consider the matters contained in the Direction in deciding whether the discretion is enlivened under section 501CA(4)(b)(ii) of the Act.

48. [Paragraph redacted]

49. [paragraph redacted]

50. [Paragraph redacted]

51. [Paragraph redacted]

52. This is a special factor that the Tribunal consider weighs strongly in favour of revoking the mandatory cancellation of the visa.

    SUMMARY AND CONCLUSION

53. The Tribunal has found that two of the primary considerations, the protection of the Australian community and the expectations of the Australian community, weigh against revoking the mandatory cancellation of Mr McLeod’s visa.  The primary consideration relating to the best interests of affected minor children weighs in favour of the Applicant, and the Tribunal considers, relatively heavily so.

54. Of the relevant other considerations, the strength, nature and duration of ties of Mr McLeod to Australia, weighs in his favour, and the extent of impediments if removed weighs slightly in his favour.

55. The Tribunal has carefully considered all the submissions and evidence before it.  The Tribunal does not have a high confidence that Mr McLeod will not re-offend.  However, all the signs are pointing in the right direction.  He has maintained a strong and loving relationship with Ms DM for a period of ten years, in spite of the challenges of being in custody for the majority of that time.  He has abstained from illicit drugs for a decade, and while most of that period has been in a controlled environment (where it is conceded that drugs are nevertheless available), some of the time was when he was bailed and living in a normal family setting with Ms DM and T.  The fact that he has not returned any positive urine test for the presence of drugs throughout what is a long period of incarceration is promising.  He has two offers of employment, and the Tribunal was particularly impressed with Mr EK and his willingness to re-employ Mr McLeod, given he had experience of him as an employee before.

56. The Tribunal has decided that, in this matter, the best interests of the minor children will be served by Mr McLeod’s visa being restored and, together with the strength of his ties with Australian citizens and permanent residents, in the specific circumstances of this case (see paragraph 13(1) of the Direction) the Tribunal is satisfied that this is a reason that carries sufficient weight, in the balancing exercise, to satisfy the Tribunal that the discretion in section 501CA(4)(b)(ii) of the Act is enlivened and the cancellation of the visa should be revoked.

57. It must be made clear to the Applicant that the visa that is being returned to him is a temporary visa.  It can be revoked at any time, in the absolute discretion of the Minister.  The Tribunal is confident that, should there be any re-offending or other serious misconduct by Mr McLeod, these proceedings may well weigh against him.  

1. Mr McLeod told the Tribunal he wants to take responsibility for his young family, and provide for them.  He has that opportunity, with a supportive and impressive partner, and others around him who gave evidence to the Tribunal that they stand ready to provide support.  It is earnestly hoped that, given this chance, the Applicant continues on the new start that he has begun to make.

   DECISION

2. The decision under review, being the decision of the Respondent dated 11 December 2019 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa pursuant to section 501(3A) of the Migration Act 1958 is set aside.

3. In substitution, the cancellation of the Applicant’s visa is revoked under section 501CA(4)(b)(ii) of the Act.

I certify that the preceding  143 (one hundred and forty-three) paragraphs are a true copy of the decision and reasons for decision herein of Senior Member D. J. Morris

…………

[sgd]………………………………………
Associate
Dated: 4 March 2020