Munyard and Minister for Immigration and Border Protection (Migration)

[2017] AATA 1284

Munyard and Minister for Immigration and Border Protection (Migration) [2017] AATA 1284 (15 August 2017)

Division:GENERAL DIVISION

File Number:           2016/5354

Re:Joseph Munyard

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member T. Tavoularis

Date:15 August 2017

Place:Brisbane

The decision under review is affirmed.

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

Senior Member T. Tavoularis

CATCHWORDS

IMMIGRATION –  non-revocation of mandatory cancellation of visa – Applicant did not pass s 501 character test and had served term of imprisonment – visa mandatorily cancelled under s 501(3A) – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – discretion should not be exercised to revoke visa cancellation – decision under review affirmed.

LEGISLATION

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

SECONDARY MATERIALS

Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member T. Tavoularis

15 August 2017

INTRODUCTION

1. This matter relates to an application for review filed by Mr Joseph Munyard (“the Applicant”) on 6 October 2016. The decision under review is the decision of a delegate of the Minister for Immigration and Border Protection (“the Minister” or “the Respondent”) dated 28 September 2016. The delegate’s decision pursuant to section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) was to not revoke the mandatory cancellation[1] of the Applicant’s visa. 

   [1] Mandatory visa cancellation by virtue of section 501(3A) of the Migration Act 1958 (Cth).

2. The Tribunal has jurisdiction to review the decision of the delegate under section 500(1)(ba) of the Act.

   BACKGROUND

3. The Applicant is a citizen of New Zealand. He first visited in Australia in 1984,[2] but returned to New Zealand the following year.[3] He returned to live in Australia with his mother and brother in 1987, when he was just 3 years old.[4] He has resided in Australia since that time except for one occasion where he returned to New Zealand for about five months.[5] Upon re-entry into Australia in March 2005 he was granted a Class TY Subclass 444 Special Category (Temporary) visa (the “visa”).

   [2] Exhibit 4, T documents, T3, p 71.

   [3] Ibid, T3, p 72.

   [4] Ibid, T 17, p 337.

   [5] Ibid, T3, p 74.

4. The Applicant claims to have received all his primary and secondary education in Australia, and has spent all of his adult life in Australia.

5. This matter concerns the circumstances surrounding the mandatory cancellation of the Applicant’s visa and the refusal of the Minister to revoke that cancellation.

6. The Applicant has a lengthy criminal history, which began in 1997, when he was 13 years old. Since then he has been charged or convicted with over 50 offences. His full criminal record is summarised in a National Police Certificate dated 13 February 2015.[6] Notably, some of his offences include:  

   ·8 October 2001 – Holland Park Magistrates Court – for three charges of common assault he was sentenced to four months imprisonment which was suspended for 3 years after serving 21 days.

   ·19 September 2003 – Brisbane District Court – for assault occasioning bodily harm he was sentenced to 9 months imprisonment.

   ·On 16 February 2006 – Brisbane Magistrates Court – for two charges of stealing and assaults occasioning bodily harm he was sentenced to 51 days of imprisonment for each charge (concurrently).

   ·7 June 2006 – Holland Park Magistrates Court – for possess tainted property he was sentenced to three months imprisonment.

   ·26 March 2008 – Holland Park Magistrates Court – for unlawful entry of vehicle for committing indictable offence and wilful destruction he was sentenced to 116 days imprisonment for each charge.

   ·29 November 2013 – Brisbane District Court – for enter dwelling with intent by break at night uses/threatens violence whilst armed in company damages property, and robbery whilst armed or pretending to be armed with an offensive weapon or instrument/in company/violence, he was sentenced to 3 years imprisonment on all charges. Additionally, for assault occasioning bodily harm whilst armed / in company he was sentenced to 2 years imprisonment. All terms of imprisonment were to be served concurrently.

   [6] Ibid, T3, pp 33-37.

7. The Applicant’s offending came to the attention of the Respondent’s Department[7] and on 2 January 2007, the Department wrote to him warning him about the consequences of further offending on his visa status.[8] The Applicant claimed he did not receive or remember receiving that warning letter.[9] As reflected in the above paragraph, the Applicant continued offending in spite of this letter.

   [7] Ibid, T5, pp 162-165.

   [8] Ibid, T6, pp 166-170.

   [9] Ibid, T18, p 340.

8. On 23 March 2016, a delegate of the Minister cancelled the Applicant’s visa under section 501(3A) of the Act.[10] This section of the Act provides that in circumstances where a visa was granted to a person who fails the character test in section 501(6)(a) on the grounds of a substantial criminal record, and at the time they are serving a sentence of imprisonment in a custodial institution on a full-time basis, then the Minister must cancel their visa.

   [10] Ibid, T 21, p 346.

9. The Applicant was notified of the mandatory visa cancellation decision and invited to make representations to the Minister about revocation of that decision. The Applicant subsequently made representations to the Minister.

10. On 28 September 2016, a delegate decided not to revoke the mandatory visa cancellation decision (“the decision under review” or “the reviewable decision”).[11] The Applicant was duly notified of this decision on 29 September 2016.[12]

    [11] Ibid, T 3, p 13.

    [12] Ibid, T 3, p 16.

11. On 6 October 2016, the Applicant applied to this Tribunal for review of that reviewable decision.[13]

    [13] Ibid, T 2, p 3.

    ISSUES

12. The refusal to revoke the mandatory cancellation was made on two grounds. I must consider and address both of the following issues:

    (a)Whether the Applicant passes the “character test” as defined in s 501(6) of the Act; and

    (b)Whether there is another reason why the cancellation should be revoked, having regard to the considerations in Ministerial Direction No 65 (i.e. should the discretion appearing in s 501CA(4) of the Act be exercised anyway?).

13. I am satisfied that the Applicant does not pass the character test in s 501(6) of the Act. I note that in written submissions,[14] and at the hearing, the Applicant did not dispute that he does not pass the character test. It was accepted that the Applicant’s visa was correctly cancelled pursuant to s 501(3A) of the Act.

    [14] Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”), [13].

14. The only issue disputed at the hearing was whether there was another reason why the discretion in s 501CA(4) should be exercised to revoke the mandatory visa cancellation decision.

15. I consider that the Minister’s delegate correctly exercised the discretion in s 501CA(4) of the Act to not revoke the mandatory visa cancellation. My reasons now follow.

    ISSUE 1: CHARACTER TEST

16. It is immediately clear to me from the material filed in this matter that the Applicant does not pass the character test. For the sake of completeness, I will still address that issue.

17. At the hearing, I confirm that the parties agreed about the nature and extent of the Applicant’s offending. As mentioned in paragraph 6 above, the Applicant has an extensive history of offending which is adequately summarised in the Respondent’s Statement of Facts, Issues and Contentions (“SFIC”)[15] and the National Police Clearance. This is accompanied by an appropriately-worded concession in the Applicant’s SFIC about his offences and that he does not pass the character test.[16]

    [15] Exhibit 2, Respondent’s SFIC, [14].

    [16] Exhibit 1, Applicant’s SFIC, [13].

18. Section 501(6) of the Act provides a number of circumstances in which someone will not pass the “character test”. Most relevant here is s 501(6)(a), under which a person does not pass the character test if they have a “substantial criminal record” as defined in s 501(7). In s 501(7)(c), a person has a “substantial criminal record” if they have been sentenced to a term of imprisonment of 12 months or more. The wording of that provision is clear: it relates to the sentence imposed by a Court, not the amount of time a person has actually served.

19. Having regard to his criminal history, it is clear the Applicant has been sentenced to more than one term of imprisonment of 12 months or more. Notably, he was sentenced to:

    (a)Seven days’ imprisonment on 8 October 2001 for breach of an undertaking as to bail;

    (b)Four months’ imprisonment on 8 October 2001 for each of three charges of common assault, to be served concurrently;

    (c)On 27 November 2002, and on 19 September 2003, one months’ imprisonment for, inter alia, breach of the suspended sentence imposed on 8 October 2001;

    (d)Nine months’ imprisonment on 19 September 2003 for the offences of: (1) assaults occasioning bodily harm, and (2) assault or obstructing a police officer;

    (e)Three months’ imprisonment on 7 June 2006 for the offence of possessing tainted property;

    (f)Two years’ imprisonment on 29 November 2013 for the offence of assaults occasioning bodily harm whilst armed/in company;

    (g)Three years’ imprisonment on 29 November 2013 for the offences of (1) using/threatening violence whilst armed/in company damages property, and (2) robbery whilst armed or pretending to be armed with an offensive weapon or instrument/in company/violence;[17]

    [17] The respective custodial terms described in sub-paragraphs (f) and (g) were ordered to be served concurrently.

20. The Applicant therefore has a substantial criminal history within the meaning of s 501(7)(c) of the Act, such that he does not pass the character test.

21. I must therefore move on to the next question: whether there is another reason why the discretion under s 501CA(4) of the Act, to revoke the mandatory cancellation of the Applicant’s visa, should be exercised.

    ISSUE 2: HOW SHOULD THE DISCRETION IN SECTION 501CA(4) BE EXERCISED?

    The Legislative Framework

22. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case, Ministerial Direction No 65 (“the Direction”) applies. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:

    “… a decision maker must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.”[18]

    [18] The Direction, [7(1)(b)].

23. The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three primary considerations that the Tribunal must take into account:

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

    (b)The best interests of minor children in Australia; and

    (c)Expectations of the Australian community.

24. Paragraph 8(1) of the Direction provides that decision makers must take into account the primary and other considerations relevant to the individual case.

25. The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims; and

    (e)Extent of impediments if removed.

26. The Direction also sets out at paragraph 6.3 a number of principles that should be taken into account when assessing the above considerations. I note that these principles have been accurately cited at paragraph [21] of the Respondent’s SFIC.

    Primary Consideration A: Protection of the Australian Community from Criminal or Other Serious Conduct

27. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that decision makers should also give consideration to:

    (a)The nature and seriousness of the non-citizen’s conduct to date; and

    (b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    (a)  The nature and seriousness of the Applicant’s conduct to date

28. The Respondent contends that having regard to the factors in paragraph 13.1.1(1) of the Direction, the Applicant’s conduct and criminal history to date is very serious.[19] I agree. He has been convicted of a number of serious crimes involving violence, including one against a minor. He also has a lengthy history of criminal offending, entailing over 50 offences on his record, which evidences a clear disregard for Australian laws.

    [19] See Exhibit 2, Respondent’s SFIC, [30].

29. When having regard to the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1 of the Direction specifies that decision-makers must have regard to a number of factors. Relevantly, amongst those factors are (a) the principle that violent and/or sexual crimes are viewed very seriously; (c) the sentence imposed by the courts for a crime or crimes; (d) the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness; (e) the cumulative effect of repeated offending; (g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status.

30. The Applicant’s conduct described in his criminal history is clearly of a serious nature. This was conceded by the Applicant and his representative at the hearing. His criminal conduct is obviously escalating in severity. As appears all too often in these sorts of applications, the Applicant’s clear disregard for lawful authority whose purpose is to cause a cessation or moderation of his conduct for his own benefit and, of course, for the general community, is almost as telling as the offending itself.

31. As mentioned, the severity and seriousness of the Applicant’s offending is escalating. This falls squarely into paragraph 13.1.2(1) of the Direction, which contemplates that, in considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, the basic principle is that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. It is apparent this is exactly what has occurred when one has even cursory regard to the Applicant’s history of offending. I think there is a genuine risk that this conduct could be repeated and, if it were, I also think such conduct could be of such a serious magnitude that any risk of repetition of such conduct would very likely be unacceptable to the Australian community.

32. He has been afforded an opportunity by sentencing courts that gave him non-custodial punishments in an attempt to help him to moderate his conduct. He has had the benefit of suspended terms of imprisonment, as well as the concurrent operation of custodial terms. These benefits and accommodations have not registered with the Applicant. The proof of this lies in the circumstances of his final and most recent serious offence. Unlawfully invading another’s residential abode is surely amongst the most brazen offences one could commit, aggravated as those circumstances were with an underlying theme of violence.

33. Having regard to the Applicant’s quantity and severity of offences and their escalating nature, I have little difficulty in agreeing with the Minister’s delegate in finding that the Applicant’s offending can only be viewed seriously in terms of its overall impact on the Australian community.

    (b)  The risk to the Australian community should the Applicant continue to commit further offences or engage in other serious conduct

34. Paragraph 13.1.2(2) of the Direction provides two factors the Tribunal must have regard to in determining the risk to the Australian community of the Applicant re-offending or continuing to engage in other serious conduct. They are:

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

    (b)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.

    The Nature of Potential Future Harm

35. While any criminal or other serious conduct inherently has a negative effect on individuals or the Australian community at large, the question regarding for the Tribunal here is what level or magnitude of harm would future offending in the nature of that perpetrated by the Applicant cause to individuals in the Australian community? I have no doubt that it would be a serious harm.

36. The most recent offences involve blatant and very serious interference with the property of another (essentially, a home invasion) and the person of another (repeated and serious assaults). There is, to my mind, no other conclusion that can be arrived at upon application of paragraph 13.1.2(2) of the Direction: given the serious nature of the Applicant’s prior offending, were he to reoffend, the nature of the harm he could cause to either individuals or the Australian community more generally, is plainly serious and includes the risk of injury or death. Consequently, I find this factor weighs against enlivening the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    The Likelihood of Re-Offending

37. I have little doubt that the Applicant is quite likely to reoffend were he to be released back into the Australian community. The first reason for this lies with the history and pattern of the Applicant’s offending thus far. As I noted above, he has committed over 50 offences, which to my mind indicates that he has a propensity to offend. It is particularly telling that not only has the serious nature of the Applicant’s offending escalated, but he committed very serious offences, warranting concurrent sentences of two and three years, after receiving notice that his visa may be cancelled should he reoffend, and after being previously sentenced to several months’ imprisonment. It therefore seems to me that neither the threat of deportation, nor the experience of being incarcerated for his crimes has prevented the Applicant from re-offending. I consider that this can only increase his likelihood of re-offending.

38. The Applicant lays the blame for his pattern of offending at the feet of his demons: he contends that abuse as a child, schizophrenia and drug and alcohol addiction have all “fuelled a history of offending behaviour and criminal conduct”.[20] He further contends that the “impending doom of being deported to New Zealand” has granted him an insight into his offending behaviour which has caused him to be both remorseful and rehabilitated.[21] The Respondent, meanwhile, concedes that the Applicant’s paranoid schizophrenia and history of drug and alcohol abuse are materially linked with his offending.[22]

    [20] Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”), [22].

    [21] Ibid, [23].

    [22] Exhibit 2, Respondent’s SFIC, [33(a)].

39. I accept that the Applicant’s mental health and substance abuse issues do materially contribute to his offending. I further reach the conclusion that the Applicant’s inability to comply with treatment for his mental health or substance abuse issues, even while subject to an Involuntary Treatment Order,[23] points to a higher likelihood that he should reoffend. While the Applicant contended that he is currently seeking psychological help but has had difficulty affording it,[24] that does not accord with his treatment history to date. A Mental Health Clinician in 2015 noted the Applicant “was rather un co-operative (sic)” and “would appear to have limited insight into his illness” during a period when he was subject to an Involuntary Treatment Order as a part of his parole conditions.[25] There is no external evidence that the Applicant has actually made bona fide attempts at participating in a course of treatment since then, much less is on a path of treatment that would prevent him from re-offending.

    [23] Exhibit 4, T Documents, T 11, p 199,

    [24] Exhibit 1, Applicant’s SFIC, [24].

    [25] Exhibit 4, T Documents, T 15, pp 205, 208.

1. The Applicant’s struggles with his mental health are clearly both very real and have a significant impact on his propensity to offend. To that end, I would implore that he seeks and complies with treatment. However, at his current level of treatment, those symptoms only serve to heighten the likelihood that he will again commit serious crimes. As paragraph 13.1.2(2)(b) of the Direction explicitly provides that “decisions should not be delayed in order for rehabilitative courses to be undertaken”, it is not relevant for me to consider the hypothetical of what would occur should the Applicant start actively participating in medical treatment. I worry that the Applicant’s lack of insight into his condition also increases the potential seriousness of those crimes.

2. In present circumstances, I consider that it is at best hyperbolic to say the “impending doom” of his deportation will have any meaningful effect on the Applicant’s rehabilitation or likelihood to re-offend should the mandatory cancellation of his visa be revoked. It clearly has not done so at the past, and nor has previous incarceration impacted his offending. Particularly if I accept that the Applicant’s mental health and substance abuse issues are the main sources of his offending, then I do not consider it likely that the threat of deportation will have such an effect.

3. Consequently, in consideration of the above, there is to my mind a great likelihood that the Applicant will reoffend, particularly if he does not obtain and comply with treatment for his mental health and substance abuse issues. This factor therefore weighs heavily against the revocation of the mandatory cancellation of the Applicant’s visa.

   Conclusion: Primary Consideration A

4. The Applicant has a lengthy history of consistent and escalating offending. Both he and the Respondent sought to attribute this to his mental health and substance abuse issues, which go untreated. Even if he were only to re-offend at the lower end of the spectrum of his offending, the frequency of his offending makes it likely that he would continue to significantly damage the property of others. Were his offending to continue on its current trajectory, I consider that the safety and indeed lives of members of the Australian community are at risk. In either circumstance, given any objective evidence of rehabilitation or treatment for his mental health and substance abuse issues, it is highly likely that he will offend again. Primary Consideration A therefore weighs heavily in favour of not revoking the cancellation of the Applicant’s visa.

   Primary Consideration B: The Best Interests of Minor Children in Australia Affected by the Decision

5. The Applicant has not provided any evidence that he has any children himself. Rather, it may be that his removal from Australia would have some impact on his nieces and nephews – the Respondent concedes as much.[26] I consider this concession to be well-made. It does not, however, follow that much weight should be accorded to this consideration.

   [26] Exhibit 2, Respondent’s SFIC, [36].

6. In an unsigned letter dated 13 August 2015, the Applicant’s mother called him the “primary babysitter” of his nieces and nephews, but conceded that “[t]hey don’t judge him or know anything about him, they just know hes (sic) the guy with the [lollies]. And they love him for it.”[27] The Applicant’s brother, meanwhile, stated that it would be sad to see the Applicant’s “blossoming relationship” with his niece be cut short.[28]

   [27] Exhibit 4, T Documents, T 3, p 96.

   [28] Exhibit 5(k), Updated Letter of Support from William Harper (undated).

7. I therefore consider that there would be a negative impact on minor children in Australia should the Applicant be removed from Australia. Although the Applicant is by all accounts a doting, loving uncle, I note that the children’s age (evidently quite young) and relationship with the Applicant (i.e. they are not his children and he does not have direct caring responsibilities for them) mean that the impact of his departure from their immediate lives would not be of too great a magnitude, particularly with the emergence of Skype and similar technologies. Similarly, should his offending continue, I doubt he would set a good example for them, On the whole, though, this factor weighs in favour of the revocation of the cancellation of the Applicant’s visa.

   Primary Consideration C: Expectations of the Australian Community

8. Under paragraph 13.3(1) of the Direction, the Australian community expects that non-citizens obey Australian laws whilst in Australia. I consider that it is unlikely that the Australian community would consider that offenders with a violent criminal history would be afforded a visa. Although the Respondent, correctly in my view, concedes that the community may afford greater leniency to individuals who have resided in Australia from a young age,[29] this is not enough for the Applicant. The violent nature of his offending and the high likelihood he will reoffend, when taken together, mean to my mind, that the Australian community would expect that the Applicant’s visa be revoked. Consequently, this factor weighs against the revocation of the cancellation of the Applicant’s visa.

   [29] Exhibit 2, Respondent’s SFIC, [38].

   Conclusion: Primary Considerations

9. It is apparent that the nature of the Applicant’s previous offending and the likelihood he will reoffend mean that Primary Consideration A must weigh heavily against revoking the cancellation of his visa. Although Primary Consideration B weighs slightly in favour of revocation, this is counterbalanced by must be weighed against Primary Consideration C, which weighs against it. On balance, then, the Primary Considerations, particularly Primary Consideration A, weigh strongly against the revocation of the cancellation of the Applicant’s visa.

   Other Considerations

10. Under paragraph 14(1) of the Direction, the Tribunal must take into account the following considerations in assessing whether to revoke the cancellation of the Applicant’s visa: 

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims; and

    (e)Extent of impediments if removed.

11. I will address each of these in turn.

    International non-refoulement obligations

12. The Applicant has neither claimed refugee status nor sought protection from Australia. Particularly given he hails from New Zealand, it is rather unlikely that he would succeed in such a claim in any event. Thus, I do not consider this factor to weigh in favour of revoking the cancellation of the Applicant’s visa.

    Strength, nature and duration of ties

13. Under paragraph 14.2 of the Direction, a core element of this consideration is the length of time the Applicant has lived in Australia, and his age when he first came here, to be balanced against the age when he began offending. The Applicant has been an Australian resident since the age of 3, although he may have lived in Australia for some time before that.[30] His mother and siblings also reside in Australia, along with his nieces and nephews. It is apparent that, in them, he has a fairly close support network.

    [30] Exhibit 4, T Documents, T 26, p 466.

14. On the other hand, the Applicant commenced offending at a very young age – some 13 years – and has had limited employment and volunteering, and otherwise done little to contribute to Australian society. How much of that is attributable to his presently poorly-treated mental health condition, I cannot say. On balance, I consider that this factor weighs slightly in favour of the revocation of the cancellation of the Applicant’s visa.

    Impact on Australian business interests

15. Neither the Applicant nor the Respondent sought to make submissions on this point. On present evidence, I cannot find that the cancellation of the Applicant’s visa would have either a positive or negative effect on Australian business interests. I accordingly give no weight to this factor.

    Impact on victims

16. This consideration, which might weigh in favour of the cancellation of the Applicant’s visa, was not considered relevant by the Respondent,[31] and nor did the Applicant make submissions on it. I therefore cannot find that this consideration has any impact in favour of or against the revocation of the cancellation of the Applicant’s visa.

    [31] Exhibit 2, Respondent’s SFIC, [39].

    Extent of impediments if removed

17. In assessing the extent of impediments the Applicant may face in establishing himself and maintaining basic living standards if removed from Australia, paragraph 14.5(1) of the Direction determines that the Tribunal must take into account:

    (a)The non-citizen’s age and health;

    (b)Whether there are any substantial language or cultural barriers; and

    (c)Any social, medical and/or economic support available to them in that country.

18. The Applicant is currently aged 33, so his age will not, in and of itself, be an impediment for him. However, the Applicant argues that his health is an important consideration in assessing this factor. His “concern is based on his chronic mental illness, and the obvious need for family support and connection”,[32] and he contends that his removal from these support networks will have a detrimental effect on his mental health.

    [32] Exhibit 1, Applicant’s SFIC, [25].

19. Although I do consider that the Applicant’s removal from Australia may initially have an adverse effect on his health, it may not with the fullness of time. Only some of his family resides in Australia, and New Zealand has a healthcare and public welfare system on par with that of Australia. Further, the Applicant will not face substantial language or cultural barriers if he should be removed to New Zealand. On balance of these factors, I find that this consideration weighs against the revocation of the cancellation of the Applicant’s visa.

    Conclusion: other considerations

20. Of the other considerations, the international non-refoulement obligations, impact on Australian business interests, and impact on victims are not relevant here. I have also determined that the extent of impediments if removed weighs against the revocation of the cancellation of the Applicant’s visa. Finally, the strength, nature and duration of ties weighs slightly in favour of revocation. Thus, on the whole, the other considerations weigh slightly against the revocation of the cancellation of the Applicant’s visa.

    CONCLUSION

21. In reaching my final conclusion as to whether to revoke the cancellation of the Applicant’s visa, I must weigh all the considerations listed above.

22. I have found that Primary Consideration A weighs strongly against revocation. Primary Consideration B, meanwhile, weighs slightly in favour of revocation. Primary Consideration C weighs against revocation. Of the Other Considerations, only two are relevant: the strength, nature and duration of ties, and the extent of impediments if removed. I am satisfied that the strength, nature and duration of ties weighs slightly in favour of revocation. The extent of impediments if removed, however, weighs against revocation.

23. On balance of the considerations, I consider that the mandatory cancellation of the Applicant’s visa should not be revoked. The decision under review is affirmed.

I certify that the preceding 63 (sixty -three) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

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

Associate

Dated: 15 August 2017

Dates of hearing:	29-30 March 2017
Advocate for the Applicant:	Ms Jennifer Samuta
Solicitors for the Applicant:	Samuta Migration
Advocate for the Respondent:	Mr Ken Powell
Solicitors for the Respondent:	Clayton Utz