NDDG and Minister for Home Affairs (Migration)
[2019] AATA 250
•27 February 2019
NDDG and Minister for Home Affairs (Migration) [2019] AATA 250 (27 February 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7307
Re:NDDG
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:27 February 2019
Place:Sydney
The decision of the Respondent dated 8 December 2018, to refuse to revoke the Applicant’s visa cancellation decision made under s 501(3A) of the Migration Act 1958 (Cth), is affirmed.
.........................[SGD]..............................................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION – Absorbed Persons visa – mandatory cancellation – failure to pass character test – Ministerial Direction No 65 – sustained pattern of offending – violent offences – multiple terms of imprisonment – risk to the Australian community – expectations of Australian community – strength, nature and duration of ties to Australia – strength, nature and duration of ties to Australia – extent of impediment if removed – best interest of minor children – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501, 501CA
CASES
Candemir and Minister for Immigration and Border Protection (Migration) [2017] AATA 531
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Marzono v Minister for Immigration and Border Protection [2017] FCAFC
Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration and Border Protection, Direction No. 65 – Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA, cl 6.3, 6.4, Part C
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
REASONS FOR DECISION
Senior Member Linda Kirk
27 February 2019
BACKGROUND
NDDG (the Applicant) was born in New Zealand in April 1970.[1] He came to Australia in 1982 when he was 12 years old.[2] Prior to its cancellation, the Applicant held an Absorbed Persons visa granted 1 September 1994.[3]
[1] Exhibit R1, G02, 100.
[2] Exhibit R1, G02, 100.
[3] Exhibit R1, G02, 135.
The Applicant has a history of criminal offending commencing in 1985 when he was 14 years old. On 26 August 2013, he was convicted in the District Court of New South Wales for the offences Robbery armed with offensive weapon, Aggravated break and enter and commit serious indictable offence and Aggravated enter dwelling with intent and sentenced to imprisonment for six years with a non-parole period of four years.[4]
[4] Exhibit R1, G02, 172.
On 1 March 2017, the Applicant was issued with a Notice of Visa Cancellation (the Mandatory Visa Cancellation Decision) under s 501(3A) of the Migration Act 1958 (Cth) (the Act) on the basis that he did not satisfy the character test in s 501(6) of the Act by virtue of the term of imprisonment referred to above.[5] On this date the Applicant was serving a sentence of full-time imprisonment at Outer Metropolitan Multi-Purpose Correctional Centre in South Windsor, New South Wales.
[5] Exhibit R1, G02, 160.
On 30 March 2017, the Applicant made a request for revocation of the Mandatory Visa Cancellation Decision and made representations to the Minister in support of his revocation request.[6]
[6] Exhibit R1, G02, 58.
On 6 December 2018, a delegate of the Minister decided not to revoke the Mandatory Visa Cancellation Decision under s 501CA(4) of the Act (the Reviewable Decision).[7]
[7] Exhibit R1, G02, 17-32.
On 12 December 2018, the Applicant lodged an application with the Administrative Appeals Tribunal (the Tribunal) seeking a review of this decision.[8]
[8] Exhibit R1, G01, 5.
The matter was heard by the Tribunal at a hearing in Sydney on 18 February 2019. The Applicant attended the hearing in person and was self-represented.
The following persons gave oral evidence at the hearing:
·the Applicant;
·RK (the Applicant’s sister);
·TP (the Applicant’s daughter).
The material before the Tribunal consists of:
·Respondent’s Statement of Facts, Issues and Contentions (SFIC) dated 8 February 2019;
·G documents (pages 1 – 245) – Exhibit R1;
·Summons material (pages 1 – 889 in two volumes) – Exhibit R2;
·Letter from RK dated 12 February 2019 – Exhibit A1.
The Tribunal has reviewed all of the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) …; and
(b)the person 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.
Paragraph 501(6)(a) relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Relevantly, a person has a substantial criminal record if the person has been sentenced to ‘a term of imprisonment of 12 months or more’: s 501(7)(c).
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: s 501CA(1).
Subsection 501CA(4) confers on the Minister the discretion to revoke the original cancellation decision under s 501(3A), termed the original decision. Subsection 501CA(4) provides:
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 65
When considering whether to revoke the cancellation decision, the Tribunal is required under s 499(2A) to have regard to the Minister’s Direction relevant to s 501CA, Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).
The Preamble to the Direction provides a framework for the guidance of decision-makers considering cancellation of a visa. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:
1The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
The Objectives are followed by paras 6.2 and 6.3 described as General Guidance and Principles respectively. The latter set the framework within which the individual considerations set out in Parts A, B and C of the Direction are set.
The first paragraph of the General Guidance provides:
1The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
The following Principles are set out in para 6.3:
1Australia 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.
2The 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.
3A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.
4In 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.
5Australia 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.
6Australia 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.
7The 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.
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
1Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
(b)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.
In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under s 501(3A).
In applying any of the Parts, including Part C, para 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case.[9] The considerations differ among the three Parts and the reason for that difference is explained in para 8(1):
… Separating the considerations for visa holders and visa Applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.
[9] The Direction, [8(1)].
Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include ‘Primary considerations’ and ‘Other considerations’. The primary considerations are:
(a)Protection of the Australian community from criminal and other serious conduct;
(b)The best interests of minor children in Australia affected by the decision; and
(c)Expectations of the Australian community.
The ‘Other considerations’ are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties [to Australia];
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 8(3) provides that “[b]oth primary and other considerations may weigh in favour of, or against… cancellation of the visa.” Generally, primary considerations should be given greater weight than other considerations and one or more primary consideration may outweigh other primary considerations.[10]
[10] The Direction, [8(4)]- [8(5)].
ISSUES FOR DETERMINATION
Before the power in s 501CA(4) to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
It is not in dispute that the Applicant does not pass the ‘character test’ in paragraph (b)(i) of the subsection. It is, therefore, necessary to decide whether, in accordance with paragraph (b)(ii) of the subsection, “there is another reason why the original decision should be revoked.” [11]
[11] Marzono v Minister for Immigration and Border Protection [2017] FCAFC 66, [31].
Subparagraph 501CA(4)(b)(ii) has been interpreted by North ACJ in Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.[12]
[12] Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, [38].
Therefore, the sole issue before the Tribunal is whether there is ‘another reason’, pursuant to s 501CA(4)(b)(ii), that the Mandatory Visa Cancellation Decision should be revoked. This requires consideration of any mitigating or extenuating factors favouring the Applicant which might militate against the cancellation of his visa.
EVIDENCE BEFORE THE TRIBUNAL
Criminal history
A National Police Certificate dated 17 May 2016[13] issued in respect of the Applicant shows that he has been convicted of a number of offences in Australia. In his representations to the Department and the Tribunal, the Applicant did not dispute the charges and convictions in the National Police Certificate regarding his criminal convictions and sentences or that he does not satisfy the character test.
[13] Exhibit R1, G02, 172-175.
Early offences
On 14 March 1990, the Applicant was convicted in Parramatta Local Court of the offence of Stealing and ordered to pay a fine.[14]
[14] Exhibit R1, G02, 174.
On 18 June 1998, the Applicant was convicted in Parramatta Local Court of two counts of Break and enter and was fined $2,000 and given a three year probation and ordered to attend counselling.[15]
[15] Exhibit R1, G02, 174.
On 11 November 1998, the Applicant was convicted of Larceny in Downing Centre Local Court and fined $200 and was ordered to pay court costs of $51.[16]
[16] Exhibit R1, G02, 174.
Robbery in company and Armed robbery
On 26 May 2000, the Applicant was convicted in Parramatta District Court of two counts of Robbery in company and was sentenced to seven years imprisonment with a non-parole period of five years and three months.[17]
[17] Exhibit R1, G02, 174.
On the same day, the Applicant was convicted in Sydney District Court of two counts of Robbery while armed with dangerous weapon and was sentenced to five years imprisonment to be served concurrently.[18]
[18] Exhibit R1, G02, 174.
The Applicant lodged a severity appeal to the NSW Court of Criminal Appeal which was dismissed summarily on 13 July 2001.[19]
[19] Exhibit R1, G02, 173.
On 13 July 2007, the Applicant was convicted in Sydney District Court of two counts of Robbery in company and three counts of Robbery armed with offensive weapon and sentenced to six years imprisonment with a non-parole period of four years and six months.[20]
[20] Exhibit R1, G02, 173.
In sentencing the Applicant on 3 August 2007, Goldring J of the District Court of New South Wales made the following comments:
At about 3am on 29 March the offender entered a …store…where the victim was working alone...the offender pushed him through the security door and followed him into the security area, knocking him to the ground...he approached the cash register and the victim saw that the offender was holding a knife in his right hand...the offender took notes and coins from the till...[21]
The second offence occurred at about 8 in the morning on Tuesday 4 April in a newsagency…. The victim was in the shop. The offender entered the store and walked around the counter to the service area. The victim immediately recognised the offender as a person who had robbed him on the previous week...The victim said "no, no" and indicated that the close-circuit television camera was working. He saw that the offender was holding what he described as a 20cm Stanley Knife with a purple handle, in his hand. The victim was fearful. The key to the cash register was already in the lock and the offender opened the register removing notes and coins.[22]
Armed robberies of stores that are open early in the morning are common, unfortunately, but for that reason working in those shops is regarded as dangerous. People who work there are entitled not to be accosted by people demanding money or property with knives, and the court must denounce this. In this case I cannot fail to note that [ has previous convictions for the same or similar offences and while that does not increase the penalty that I will impose for this offence, it does not mean that I cannot be as lenient as otherwise might be the case.[23]
It is an element of the offence of armed robbery that the victim is put in fear, and I have no doubt that this has happened in this case.[24]
[21] Exhibit R2, SM2, 143.
[22] Exhibit R2, SM2, 144.
[23] Exhibit R2, SM2, 149-150.
[24] Exhibit R2, SM2, 150.
On 26 August 2013, the Applicant was convicted in the District Court of New South Wales of Robbery armed with offensive weapon, Aggravated break and enter commit serious indictable offence and Aggravated enter dwelling with intent and was sentenced to six years imprisonment with a non-parole period of four years.
In sentencing the Applicant on 26 August 2013, Freeman AJ of the District Court of New South Wales made the following comments:
The first substantive count of aggravated entry of a dwelling involved a premises in Cross Street Merrylands, the co-offender…entered those premises via a bathroom window and within the premises stole a number of items which probably do not have great financial value…whilst this prisoner was remaining in the stolen vehicle acting as a look out.[25]
The second substantive count is one of robbery armed with an offensive weapon and it was shortly after 4am on 21 April 2012 when [the victim] was delivering milk to a supermarket in Merrylands...he saw this prisoner standing near the driver's door of the truck, the prisoner withholding (sic) a knife described by [the victim] as having two holes in the blade with the tip of the blade very sharp and curved. The prisoner said, "I need money, give me your money", [the victim] said, "I don't have any if you don't believe me check the truck", whereupon the prisoner did, removing a number of items including [the victim’s] wallet which contained $27 and some other items...[The victim] said understandably that he was really scared that the man was going to hurt him.[26]
The third substantive offence is one of aggravated breaking and entering with the stealing and again it was [the co-offender] who smashed the lower front glass panel of the front door of business premises in Bell Street Wood Park, this prisoner acting again as lookout.[27]
In this case the robbery whilst armed with an offensive weapon was carried out solely by this prisoner and is of particular concern because at the time this prisoner was on parole from a sentence imposed for armed robbery ... The Crown calculates that he had nine previous offences of robbery whilst armed on his record of robbery at least.[28]
[25] Exhibit R1, G02, 43-44.
[26] Exhibit R1, G02, 44-45.
[27] Exhibit R1, G02, 45.
[28] Exhibit R1, G02, 46.
Other offences
On 10 March 2004, the Applicant was convicted in Cessnock Local Court for Possess prohibited drug and was fined $300 and ordered to pay court costs of $61.[29]
[29] Exhibit R1, G02, 173.
On 19 August 2005, the Applicant was convicted in Downing Centre Local Court for Possess prohibited drug and Escape from lawful custody and was given a 200 hour community service order, fined $400 and ordered to pay court costs of $65. The community service order was called up and on 13 October 2006 the Applicant was sentenced to 184 days imprisonment.[30]
[30] Exhibit R1, G02, 173.
On 1 March 2012, the Applicant was convicted of Shoplifting in Downing Centre Local Court and fined $150 and ordered to pay court costs of $81.[31]
[31] Exhibit R1, G02, 173.
On 3 October 2012, the Applicant received a s 10A conviction in Fairfield Local Court for Destroy or damage property.[32]
[32] Exhibit R1, G02, 172-3.
On 13 December 2012, the Applicant appeared in Parramatta Local Court with charges of Resist officer in execution of duty, three counts of Larceny and one count of Custody of knife in public place.[33]
[33] Exhibit R1, G02, 173.
Applicant’s responsibility and remorse for criminal behaviour
During his oral evidence at the hearing, the Applicant did not deny these offences or their seriousness. He stated that employees should not have to be faced with a violent offender while carrying out their work duties. He now recognises that his victims would have suffered emotional and psychological damage as a consequence of his criminal activity, even though they were not physically harmed by his offending.
The Applicant told the Tribunal that his offences occurred when he was under the influence of drugs, particularly heroin. He committed the offences to obtain money to feed his drug habit. He has been on a methadone program now for the past four years and sees a counsellor once a week.
Risk of re-offending
In the form the Applicant completed requesting revocation of the Mandatory Visa Cancellation Decision, in answer to the question What do you think is the likelihood that you may re-offend now? the Applicant wrote:
I do not believe I will re-offend – I feel I have caused emotional damage to my victims, their families, my family. I am a lot older. I have re-looked (sic) at myself and decided I needed to change and through participation in groups I feel I have changed – certainly in my thinking and hence my actions. I am more prepared for release this time.[34]
[34] Exhibit R1, G02, 102.
Previous visa cancellation decisions
On 21 December 2006, the Applicant’s Absorbed Person visa was cancelled under s 501(2). The visa was subsequently re-instated following a Federal Court decision.[35]
[35] Exhibit R1, G02, 23; see Sales v Minister for Immigration and Multicultural Affairs [2006] FCA 1807.
On 24 April 2007, the Department issued the Applicant with a Notice of Intention to Consider Cancellation.[36] On 28 April 2009, a decision was made not to cancel the Applicant’s visa under s 501(2). The Applicant acknowledged this decision on 15 September 2009.[37]
[36] Exhibit R1, G02, 154.
[37] Exhibit R1, G02, 120.
In his oral evidence the Applicant told the Tribunal that when he received these warnings from the Department it ‘didn’t sink in’ at the time, but he subsequently came to realise their seriousness, and that he would face deportation if he continued to offend.
Time in prison and immigration detention
A Conviction, Sentences and Appeals Report from the NSW Department of Corrective Services dated 1 March 2017 shows that:
·on 12 April 2016, the Applicant failed a prescribed urine test;[38]
·on 18 March 2014, the Applicant was reprimanded and cautioned for ‘unlawful del/rec art inmate;’[39]
·between 2000 and 2010 the Applicant offended a number of times while in custody for possessing prohibited goods and failing urine tests.[40]
[38] Exhibit R1, G02, 170.
[39] Exhibit R1, G02, 170.
[40] Exhibit R1, G02, 170-171.
The Applicant told the Tribunal that the ‘failed’ urine tests were not a positive result but that he had been unable to provide a urine sample on these occasions.
During the Applicant’s time in jail he undertook work duties, including roles as Head Sweeper and Painter.
During his time in immigration detention, the Applicant has not engaged in aggressive or violent behaviour and there are no recorded incidents or offences involving the Applicant.
Programs and certificates completed
During his imprisonment the Applicant successfully completed a number of programs and certificates as follows:
·EQUIPS Addiction Program dated 7 September 2016;[41]
·EQUIPS Aggression Program dated 3 November 2015;[42]
·Health Survival Program dated 5 June 2014;[43]
·Relapse Prevention dated 24 February 2014;[44]
·Intensive Drug and Alcohol Treatment Program dated 14 April 2015;[45]
·Achievement Award – Theory in Hygiene Operations dated 14 May 2015;[46]
·Statement of Attainment in Mentoring Practice dated 7 September 2016;[47] and
·Statement of Attainment in Food Safety Supervision dated 18 December 2014.[48]
[41] Exhibit R1, G02, 73.
[42] Exhibit R1, G02, 74.
[43] Exhibit R1, G02, 75.
[44] Exhibit R1, G02, 77.
[45] Exhibit R1, G02, 78.
[46] Exhibit R1, G02, 69.
[47] Exhibit R1, G02, 72.
[48] Exhibit R1, G02, 76.
The Applicant told the Tribunal that in addition to these courses and programs he successfully completed the following:
·Barista course – Certificate I and II;
·Small mechanics – Certificate I (2008-9);
·Welding – Certificate I and II (2011).
In his oral evidence at the hearing, the Applicant told the Tribunal that he volunteered to complete the EQUIPS Addiction and Aggression Programs and he now has the skills he needs to prevent relapse and avoid risky behaviour. His confidence and self-esteem have improved and he is now willing and able to ask for the help he needs.
Relationship with his grandchildren
The Applicant told the Tribunal that he has a close relationship with his two grandsons aged seven and two and a half years. His elder grandson was born in 2011 before he went to jail. He would see him on a daily basis and would assist his daughter with his care. However, ‘much to [his] loss and deep regret, the bonding which was building between [his grandson and him] disintegrated due to [his] returning to custody, contact became limited.’ The Applicant’s younger grandson was born in 2016 while he was in jail. His daughter and her partner bring both boys to visit him as often as possible. His older grandson has recently started asking questions about why his granddad cannot come home and at the end of visits to see the Applicant he has become withdrawn.[49] His grandson is being assessed for ADHD and autism.[50] The Applicant acknowledges:
To date, I haven’t been a good role model in my grandson’s lives, however I hope to remedy this – if I am allowed to remain in Australia.[51]
[49] Exhibit R1, G02, 107.
[50] Exhibit R1, G02, 129; see also 132-134.
[51] Exhibit R1, G02, 107.
Relationship with other family members
The Applicant has two daughters and two sisters with whom he maintains regular contact. His mother passed away in December 2018 and his father is suffering from acute dementia.
In a letter dated 14 May 2018, the Applicant’s father, LP wrote:
I am experiencing a lot of memory loss as well as other health problems and I really need all of my children around me especially now more than ever. I have a lot of Dr’s appointments, so it is very important that I have my son here with me not just for physical but mental reasons as well. The thought of not having my son here with me is too much to bare (sic) and overwhelms and saddens me greatly.[52]
[52] Exhibit R1, G02, 92.
In her undated statement and in her oral evidence, the Applicant’s daughter, TP, wrote that the Applicant has lost so much time with her and her sister, DP, during his incarceration. She was nine years old when the Applicant went to jail. In her statement she wrote that the Applicant is not a bad person; ‘he got caught up in a bad crowd and drugs, the drugs were the worst thing that could of come into his life it made him a different person and wrecked our lives.’[53] The Applicant ‘still has time to build bonds with his two young grandchildren and still can make up for lost time with my sister and I.’ Her sister, DP, ‘is in need of love and support’ and has struggled with mental health issues and homelessness.[54] She told the Tribunal that the Applicant will live with her family if he is released, and he will have their full support.
[53] Exhibit R1, G02, 129-130
[54] Exhibit R1, G02, 130; see also Exhibit R1, G02, 124-125.
In her written statement dated 12 February 2019 and in her oral evidence, the Applicant’s older sister, RK, explained that their mother left their father in 1983, leaving him to raise five children. The Applicant was then 13 years old and together they played a significant role in raising their younger siblings as their father turned to alcohol to deal with his depression and anger. She described the Applicant as the ‘peace keeper in our family’. He has ‘this ability to bring all us together in times of need no matter the circumstance.’ She fears their father’s health will worsen if the Applicant is deported as he is the oldest son, which carries considerable weight in their culture. Their mother’s death in December 2018 was ‘sudden and unexpected’ and the Applicant ‘was devastated as he wasn’t allowed to see her body nor attend the funeral.’ Their family ‘has been fractured for too long and it took [their] mother’s passing for [them] all to realise how much [they] need each other and how much [they] need [the Applicant]’.[55]
[55] Exhibit A1.
Employment and plans for the future
In his oral evidence the Applicant outlined his work history as follows:
·1987-88 – bricklayer;
·1990 – scaffolder;
·1993-95 – gyprocker; and
·2005-2006 – cleaner.[56]
[56] See also Exhibit R1, G02, 103.
The Applicant told the Tribunal that if he is released into the community he will live with his daughter TP, her husband and their children (his grandchildren). He will work part-time as a labourer for a family member.[57]
[57] Exhibit R1, G02, 130.
Contributions to the community
In his oral evidence at the hearing the Applicant told the Tribunal that he participated in putting together a DVD to provide guidance to young people, particularly to discourage them from engaging in criminal activity. He has also spoken to pre-adolescent boys about how the decisions they make can impact on their futures.[58]
[58] See also Exhibit R1, G02, 103.
Physical and mental health
The Applicant is suffering from depression for which he is currently taking medication. He also has been diagnosed with Hepatitis B.[59] He is currently on a methadone program.
[59] Exhibit R1, G02, 81.
During sentencing of the Applicant in August 2013, Freeman AJ referred to a report submitted to the Court from consultant psychologist, Dr John Jacmon:[60]
In summary what Dr Jackman (sic) says is that the [Applicant] suffers from borderline personality defect which is a notoriously difficult condition to treat, it is not amenable to a cure but can only be managed doubtless it will require intensive management for a prolonged period of time, as well the [Applicant] has addictions to drugs.[61]
[60] Exhibit R1, G02, 47.
[61] Exhibit R1, G02, 47.
In his sentencing remarks, the Acting Judge noted that the Applicant had a history of drug abuse, particularly heroin, prior to his first custodial sentence but he overcame his addiction while in custody. He resumed his heroin addiction in 2005 when his former partner ended their relationship. He put himself on a buprenorphine program and obtained employment. He subsequently resumed his heroin addiction and committed the offences for which he was jailed in 2007. When released on parole in 2011 the Applicant returned to drug use, specifically Xanax, immediately prior to his 2012 offences for which he was jailed in 2013.[62]
[62] Exhibit R1, G02, 48.
Impediments on return to New Zealand
The Applicant told the Tribunal that he has no support in New Zealand and he has had no contact with family members there since he left in 1982. He said that New Zealand ‘means nothing to him’ and he wants to stay in Australia with his family and grandchildren and lead a normal life. He knows he has ‘no more chances’ and will ‘go straight back’ if he offends again.
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
The Tribunal must consider any mitigating circumstances that may militate in favour of setting aside the decision not to revoke the Mandatory Visa Cancellation Decision. In doing so, it must take into account the considerations in Part C of the Direction, informed by the Principles in para 6.3.
Primary Consideration 1 – Protection of the Australian community
Primary Consideration 1 of Part C is the protection of the Australian community. Paragraph 13.1(1) of the Direction provides:
1When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 13.1(2) directs 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.
Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(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 repeat offending;
(f)…
(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 …
Nature and seriousness of the Applicant’s conduct to date
In assessing the seriousness of the Applicant’s past criminality, and the risk posed should he commit further offences, the Tribunal notes that the Applicant began offending in 1985 at the age of 14 years. His offences include serious and violent crimes including six offences of armed robbery and his victims included vulnerable persons, specifically employees in shops in the early hours of the morning.
Having regard to para 13.1.1(1)(a) and para 13.1.1(1)(b) of the Direction, the Tribunal finds that the Applicant’s crimes, specifically the armed robbery offences, were violent in nature, although he did not physically harm his victims. The Tribunal has had regard to the remarks of Freeman AJ in relation to the Applicant’s conviction in August 2013, specifically that the Applicant’s victim, although not harmed by the Applicant, was ‘really scared’ that he would be hurt by the Applicant. Having regard to these remarks and the guidance in para 13.1.1(1)(a) and para 13.1.1(1)(b), the Tribunal finds that the Applicant’s conduct to date has been in the mid-range of seriousness.
Having regard to para 13.1.1(1)(c) and para 13.1.1(1)(d) of the Direction, the Tribunal notes that the Applicant has been sentenced to terms of imprisonment on three occasions for a dozen offences. It notes that custodial sentences are imposed as a last resort, and finds that these sentences indicate the seriousness of the Applicant’s conduct.
The Tribunal has had regard to the cumulative effect of the Applicant’s offending in determining the seriousness of his conduct in accordance with para 13.1.1(1)(e) of the Direction. The Tribunal finds that the Applicant’s criminal offending demonstrates a sustained pattern of offences involving aggression and violence, and their cumulative effect indicates the seriousness of his conduct.
The Tribunal has had regard to the Applicant’s claims that parental neglect during his childhood years may have contributed towards his drug use and criminal offending. However, it notes that the Applicant did not take steps to seek professional help for his drug abuse and psychological problems until he was in custody, and that upon his release from prison he relapsed back into drug abuse. The Tribunal notes that in 2013 Dr Jacmon diagnosed the Applicant as suffering from borderline personality disorder. The Applicant’s difficult past, and until recently undiagnosed and untreated psychiatric condition, does not make any less serious the offences for which he was convicted and sentenced to terms of imprisonment.
The Tribunal has had regard to para 13.1.1(1)(g) of the Direction and notes that the Applicant was warned by the Department on two occasions of the consequences of him continuing to re-offend. These warnings, which the Applicant did not heed, are further indications of the seriousness of the Applicant’s offending.
The Tribunal finds that the nature and cumulative effect of the Applicant’s criminal conduct to date are serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must have regard to para 13.1.2 of the Direction:
1In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
2In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(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 (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).
In having regard to the nature of the harm to individuals or the Australian community if the Applicant were to re-offend, the Tribunal notes that the Applicant’s offences involved violence, including threats and aggression towards vulnerable victims, and that he was frequently armed during the conduct of his offences. It finds that should the Applicant continue to engage in conduct similar to that which was the subject of his previous convictions, this could potentially cause significant harm to individuals or the Australian community including physical and psychological harm and financial loss.
In having regard to the likelihood that the Applicant will engage in further criminal or other serious conduct, the Tribunal has had regard to the Applicant’s evidence to the Tribunal, the representations he made in support of his request for revocation of the Mandatory Visa Cancellation Decision, and the oral and written evidence of his family members.
The Applicant’s evidence is that he has undertaken a number of courses, including EQUIPS Addiction and Aggression Programs, which have given him the tools he requires to avoid risky behaviour and relapse into drug addiction upon his release. The Tribunal accepts that the Applicant has made considerable efforts to acquire the knowledge and skills he needs to prevent him from resuming his drug habit that has to date fuelled his violent and aggressive criminal offending. However the Applicant has a track record of relapse into drug addiction upon release from jail leading to repeat offending and further periods of imprisonment. The Tribunal cannot therefore be satisfied that the Applicant will not resume drug taking upon release into the community and therefore finds that there is a not insubstantial risk that the Applicant will re-offend.
The evidence of the Applicant’s relatives, particularly his daughter and sister is that they will provide the Applicant with considerable assistance and support upon his release, including providing him with accommodation and help finding employment. The Tribunal finds that while this is essential to the Applicant continuing his rehabilitation, it is not sufficient. There is no evidence before the Tribunal that the Applicant has arranged or is seeking the support he will need to ensure he does not resume his drug habit. The Tribunal accepts that the Applicant has been on a methadone program for four years however he will require the support and guidance of medical practitioners and social workers if he is to continue his recovery. Given his diagnosis of borderline personality disorder, the Applicant will require ongoing treatment by a psychologist or psychiatrist if he is to manage this condition and it not impact on his recovery. In the absence of evidence that the Applicant is taking steps to ensure he has this support following his release, the Tribunal cannot be satisfied that the Applicant will not resume drug taking which will greatly increase the likelihood he will engage in further criminal activity and cause harm to others.
On the basis of the evidence before it, the Tribunal finds that the risk of the Applicant engaging in further criminal conduct is at the middle end of the scale.
In making this finding, the Tribunal has been informed by Principle 5 which provides:
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.
The evidence before the Tribunal is that the Applicant came to Australia at the age of 12 and that he has spent the vast majority of life in this country, including undertaking his schooling here and working in a range of employment roles.
The length of time the Applicant has been living in Australia is a factor that supports a finding that there is a higher level of tolerance for his serious criminal conduct than there would be for a non-citizen who has lived in the community for a much shorter period of time.
However, the Tribunal notes that the Applicant commenced criminal activity in Australia when he was aged 14, just two years after his arrival. He will soon mark his 49th birthday and therefore for the vast majority of the more than three decades that he has been resident in Australia he has been involved in criminal offending that has caused harm to individuals. Accordingly, the Tribunal finds that the level of tolerance for the Applicant’s behaviour is diminished by the period of time he has been engaged in criminal activity during his residency in Australia.
For the reasons above, and applying the guidance in paras 13.1.2(1) and (2) of the Direction, Primary Consideration 1 weighs against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 2 – The best interests of minor children in Australia affected by the decision
Primary Consideration 2 of Part C in para 13.2(1) requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.[63]
[63] The Direction, [13.2(2)].
In considering the best interests of the child, para 13.2(4) provides:
4In considering the best interests of the child, the following factors must be considered where relevant:
(a)nature and the duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Having regard to the factors outlined in para 13.2(4), the Tribunal notes that the Applicant has two grandsons aged seven (born 2011) and two and a half years (born 2016), both of whom are Australian citizens.
Having regard to para 13.2(4)(a) and (e) of the Direction, the Tribunal notes the evidence before it is that the Applicant spent time with his elder grandson following his birth before he was incarcerated in 2013, and that he gave his daughter support in his grandson’s care. There is no evidence that the Applicant was residing with his daughter and grandson at this time. Therefore while the Applicant provided assistance to his daughter in his grandson’s care, he did not assume a parental role with respect to his grandson, this role being fulfilled by his daughter and her partner.
Having regard to para 13.2(4)(a), the Tribunal notes that the Applicant’s elder grandson was aged 18 months when the Applicant was imprisoned in August 2013, and his younger grandson was born in August 2016 while the Applicant was in jail. The Tribunal finds that the regular visits made by his daughter with her sons to see the Applicant in jail and immigration detention would have allowed the boys to remain familiar with their grandfather. However the long period of his absence from their daily lives is such that they have been unable to form a close and meaningful bond with him. The Applicant himself acknowledges that his relationship with his elder grandson deteriorated considerably following his incarceration.
Having regard to para 13.2(4)(b), the Tribunal notes that the Applicant acknowledges that to date he has not been a positive role model for his grandsons. However he claims he plans to remedy this upon his release when he will be living with them at his daughter’s family home. The Tribunal finds that as both boys are young, there is the potential for the Applicant to play a positive role in their upbringing as he will be seeing them on a daily basis and able to attend to their care and needs.
The fact that the Applicant has been incarcerated for much of his grandsons’ lives means that his criminal offending is unlikely to have had a negative impact on them. Accordingly the consideration in para 13.2(4)(c) is of limited relevance in the Applicant’s circumstances.
Having regard to para 13.2(4)(d), the Tribunal finds that the Applicant’s grandsons are accustomed to maintaining contact with him by phone and messaging and that this could continue if he were to leave Australia. They would however be affected by not being able to visit him on a regular basis as they have done in the past and are currently able to do while he is being held in immigration detention.
The Tribunal notes that the Respondent concedes that this Primary Consideration weighs against a decision not to revoke the Mandatory Visa Cancellation Decision. However the Respondent submits that the weight to be given to this consideration should be determined having regard to the fact the Applicant has not assumed parenting obligations with respect to the boys; he has been in prison for much of their lives; and he can continue to maintain contact with them by phone and other means of communication.
For the reasons outlined above, and applying the guidance in para 13.2(4) of the Direction, Primary Consideration 2 weighs in favour of revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 3 – The expectations of the Australian community
Primary Consideration 3 of Part C in para 13.3(1) states:
1The Australian community expects non-citizens to obey Australia’s 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.
The Direction does not refer to studies or other evidence which may guide the decision-maker in relation to public attitudes and values in determining the expectations of the Australian community: Candemir and Minister for Immigration and Border Protection (Migration) [2017] AATA 531 at [61]. This consideration is, therefore, a matter ultimately for the decision-maker to determine having regard to guidance found in existing jurisprudence.
In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, Mortimer J observed in relation to the consideration detailed in para 13.3 of the Direction:
[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] …It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]).
Noting Her Honour’s observations that this consideration inevitably weighs against revocation in that it operates effectively as a deeming provision in relation to expectations of the community, regardless of the existence or otherwise of any objective basis for this, the Tribunal finds that the consideration weighs against revocation of the Mandatory Visa Cancellation Decision.
The Tribunal finds that Principle 2 of the Direction, which recognises the expectation of the Australian community that a person who commits serious crimes should have their visa cancelled, is reflected in para 13.3 and Mortimer J’s finding that this is effectively a deeming provision in relation to the non-revocation of a mandatory visa cancellation decision in relation to a person who fails the character test.
In support of this finding, the Tribunal notes that while the Australian community may have been prepared to overlook or tolerate the offences committed by the Applicant as a young man, it would expect that as an adult, and after periods of imprisonment, he would make necessary changes in his life to prevent him from re-offending. Since his first term of imprisonment in 2000, the Applicant has not made these changes and the pattern of drug taking and offending has continued. In these circumstances, it is reasonable to conclude, and the Tribunal finds, that the expectation of the Australian community is that the Applicant no longer hold a visa permitting him to remain in Australia
Accordingly, for the reasons outlined above and applying the guidance in para 13.3(1), the Tribunal finds that Primary Consideration 3 weighs against the revocation of the Mandatory Visa Cancellation Decision.
Other considerations
While the primary considerations carry particular weight, the Direction acknowledges at para 14 that other considerations must be taken into account by the decision-maker where relevant.
The five other considerations are listed in para 14(1):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
International non-refoulement obligations
A ‘non-refoulement’ obligation is an obligation not to forcibly return, deport or expel a person to a place where he or she will be at risk of a specific type of harm. There is no suggestion that the Applicant is at risk of harm of the nature that raises Australia’s non-refoulement obligations under the 1951 Convention on the Status of Refugees as amended by the 1967 Protocol (Refugees Convention). Therefore, the Tribunal finds that this consideration does not arise on the evidence in this case.
Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
1Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen has arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Having regard to para 14.2(1)(a) of the Direction, the Tribunal has given weight to the evidence before the Tribunal that the Applicant arrived in Australia as a 12 year old and has resided in Australia continuously since this time. The Applicant considers Australia his home and he no longer has a connection to New Zealand where he spent the first decade of his life.
The Tribunal has had regard to the evidence before it that the Applicant commenced criminal offending at the age of 14, two years after his arrival in Australia. This evidence is unfavourable to the Applicant as it demonstrates that, having lived in Australia for nearly four decades, for the vast majority of this period he has engaged in criminal activity.
Having regard to the considerations in para 14.2(1)(b), the Tribunal finds that the evidence demonstrates that the Applicant has significant ties to Australia, particularly his two daughters, his grandsons, his sisters and their children, and his father, all of whom are either Australian citizens or have a permanent right to remain.
The evidence before the Tribunal is that the impact on his family of the Applicant returning to New Zealand will be significant, particularly the emotional hardship they will endure. His daughters and sisters will be particularly affected by the removal of their father and brother, particularly the loss of the opportunity to re-establish their relationships with him. The Applicant’s father will be significantly disadvantaged by the Applicant’s return to New Zealand because his ailing health is such that he is unable to travel and therefore he is unlikely to see his son again.
There is no evidence before the Tribunal to indicate that his daughters and sisters would not be permitted to visit the Applicant in New Zealand. However the Tribunal recognises that finances are not always adequate to permit families to travel abroad on a regular basis. There is no evidence to indicate that the Applicant’s family would not be able to maintain regular contact with him via phone and other forms of electronic and other communication if he returns to New Zealand.
On the basis of the evidence before it, particularly the strength and nature of the Applicant’s family ties in Australia, the Tribunal finds that this consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
1Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivers an important service in Australia.
The Applicant’s employment prior to his incarceration was working in the construction industry and as a cleaner. There is no evidence of a relevant ‘employment link’ and the Applicant does not claim that any Australian business interests would be affected by his removal to New Zealand.
Impact on victims
Paragraph 14.4(1) of the Direction states:
1Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Tribunal finds that there is no evidence of any potential impact on the victims of the Applicant’s criminal activity of a decision not to revoke the Mandatory Visa Cancellation Decision. It notes however that the Applicant recognises that his offences would have had a significant psychological impact on his victims and that this effect is likely to be ongoing. This consideration does not therefore favour revocation of the Mandatory Visa Cancellation Decision.
Extent of impediments if removed from Australia/not permitted to return
The Direction states in para 14.5(1) that:
1The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The evidence before the Tribunal is that the Applicant has no family or friends in New Zealand and he will be alone and left to establish himself there without support.
In relation to the considerations in para 14.5(1) the Tribunal finds that living standards in New Zealand will not be significantly different to those in Australia. Having regard to the considerations in para 14.5(1)(a), the Tribunal notes that the Applicant is aged 49 years and has the skills to find employment in the construction industry or as a cleaner in New Zealand. The skills and qualifications he acquired as a result of the programs and courses he completed in jail provide further potential for him to secure employment upon his return. Having regard to para 14.5(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on his return, although it will take time for him to readjust to life in a country in which he has not lived for almost four decades.
Having regard to para 14.5(1)(c), the Tribunal finds that the Applicant will have the same access to the welfare benefits of New Zealand citizens including health care and social services. The Applicant will be able to obtain the treatment and support he requires to ensure that he continues his rehabilitation. He will have access to the medical treatment and medication he requires for his physical and psychological conditions. The Tribunal finds that the obstacles the Applicant may experience on his return to New Zealand, whilst real are not insurmountable.
On balance, the Tribunal finds that the impediments the Applicant will face if he is returned to New Zealand weigh against revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration 1 weighs against revocation of the Mandatory Visa Cancellation Decision. The nature and seriousness of the Applicant’s offences, particularly their violent nature, and the risk of him re-offending in the event that he again relapses into drug addiction is such that the protection of the Australian community is best served by non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 2 weighs in favour of revocation of the Mandatory Visa Cancellation Decision. It is in the best interests of the Applicant’s grandsons for him to remain in Australia and to have the opportunity to form an emotional bond with their grandfather. Although the Applicant’s daughter and partner are the primary caregivers of their sons, the Applicant could play a positive role in their upbringing until they reach adulthood.
Primary Consideration 3 weighs against revocation of the Mandatory Visa Cancellation Decision for the reasons outlined above, particularly the effective deeming operation of this consideration.
In regard to the relevant other Considerations, the strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
DECISION
The decision of the Respondent dated 6 December 2018 to refuse to revoke the Applicant’s visa cancellation decision made under the Act is affirmed.
I certify that the preceding 134 (one hundred and thirty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
...............................[SGD].........................................
Associate
Dated: 27 February 2019
Date(s) of hearing: 18 February 2019 Applicant: In person Solicitors for the Respondent: W Staples, Clayton Utz
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