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

[2021] AATA 502

NLHN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 502 (16 March 2021)

Division:GENERAL DIVISION

File Number(s):      2021/0001

Re:NLHN

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:16 March 2021

Place:Sydney

The decision under review is affirmed.

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

Mrs J C Kelly, Senior Member

CATCHWORDS

MIGRATION – cancellation of Applicant’s Class TY, Subclass 444 Special Category (Temporary) visa – citizen of New Zealand – failure to pass character test – whether there is another reason to revoke the visa cancellation – Direction No. 79 – protection of the Australian community – best interests of minor children in Australia – expectations of the Australian community – strength, nature and duration of ties – extent of impediment if removed – decision under review affirmed

LEGISLATION

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

CASES

FYBR and Minister for Home Affairs [2019] FCAFC 185

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

16 March 2021

Introduction

1. On 23 December 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Respondent) decided under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the mandatory cancellation of the Class TY Subclass 444 Special Category (Temporary) visa (the visa) held by NLHN, the Applicant in these proceedings. NLHN applied to the Tribunal for review of that decision on 1 January 2021.

2. The visa had been cancelled under s 501(3A) of the Act on 28 February 2019.  The Applicant was notified of the cancellation by letter dated 1 March 2019.  He made representations seeking revocation of that decision on 28 March 2020. 

3. The mandatory cancellation was pursuant to s 501(3A) of the Act because the Applicant did not pass the “character test” defined in s 501(6)(a) of the Act, as he had a “substantial criminal record” according to s 501(7)(c), and because he was serving a sentence of imprisonment on a full-time basis in a custodial institutional for an offence against a law of the Commonwealth or a State or Territory.

4. The Applicant had a “substantial criminal record” because he had been sentenced to imprisonment for 12 months or more.  In September 2017 he was convicted of three supply prohibited drug offences and the offence of participate criminal group contribute criminal activity-T2.  He was sentenced to various terms of imprisonment, the longest being 6 years and 4 months, with a non-parole period of four years.  

   Issues

5. Section 501CA(4) of the Act sets out the requirements for revocation of the mandatory cancellation of a visa under s 501(3A) of the Act. They are whether the Minister (and now the Tribunal exercising the powers and discretions available to the Minister) is satisfied that:

   (i)the Applicant made representations in accordance with the invitation issued under s 501CA(3);[1] and

   (ii)the Applicant passes the character test (as defined in s 501(6));[2] or, if the Applicant does not pass the character test, that there is another reason why the cancellation decision should be revoked.[3]

   [1] The Act s 501CA(4)(a).

   [2] The Act s 501CA(4)(b)(i).

   [3] The Act s 501CA(4)(b)(ii).

   Did the Applicant make representations as required by s 501CA(4)(a) of the Act?

6. The Applicant made representations as required by s 501CA(4)(a) of the Act.

   Does the Applicant pass the character test?

7. The Applicant does not pass the character test as defined in s 501(6)(a) because he has a substantial criminal record as defined in s 501(7)(c), having been sentenced on 1 September 2017 to a term of imprisonment of 12 months or more.

   Is there another reason why the cancellation decision should be revoked?

8. A decision under s 501CA(4) of the Act involves an assessment and evaluation of the

   factors for and against revoking the cancellation.[4]

   [4] Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [30], per Collier J.

9. A determination under s 501CA(4) must be carried out in accordance with any written directions given by the Minister under s 499(1) of the Act.[5]  On 20 December 2018, the Minister issued Direction No. 79 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 79).  Direction 79 commenced on 28 February 2019.

   [5] The Act s 499(2A).

10. The Preamble in Direction 79:

    Contains the Objectives of this Direction, General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to cancel or refuse a non-citizen's visa under section 501 or to revoke a mandatory cancellation under section 501CA.

11. Part C of Direction 79 prescribes three “Primary considerations” and five “Other considerations” to be taken into account when considering whether to revoke the mandatory cancellation of a non-citizen’s visa.  Each consideration relevant in this case will be addressed.

    Protection of the Australian community

12. Protection of the Australian community from criminal or other serious conduct is a primary consideration.[6]

    [6] Direction 79, para 13(2)(a).

13. Paragraph 13.1(1) of Direction 79 provides:

    When 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

14. There are two relevant factors when considering the protection of the Australian community: (a) the nature and seriousness of the Applicant’s conduct to date, and (b) the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.[7]

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

    [7] Direction 79, para 13.1(2).

15. The Applicant is a New Zealand citizen who came to Australia aged eight in 2001. He has an eight year old daughter with his partner. He is now 28 years old. A summary of his criminal history is at Annexure 1.

16. The Applicant’s parents sent him from State 1 to relatives in State 2 when he started to get into trouble when he was about 13.  He began offending in State 2 at the end of 2006 and had been convicted of 34 offences by the beginning of December of 2007.  The offences included breach of bail, stealing (including motor vehicles), burglary, drive without a licence, assault a police officer, dangerous driving, and contravening conditions of a notice.  On 5 December 2017, the Applicant was sentenced to a six month detention order commencing on 29 October 2007.

17. Having returned to State 1, by December 2008 he was before court again.  

18. The lack of offending in the latter half of 2010 and 2011 is explained by the Applicant being in detention for at least 13 months.

19. He was convicted of his first offences as an adult in February 2012: go onto, into or remain on, in restricted area of a station (no other penalty) and possess prohibited drug, for which he was fined $200.  That was his first drug offence.

20. On 10 January 2013 he was sentenced to imprisonment commencing on 9 October 2012, for six months in respect of each of three driving offences and for 12 months for another driving offence, with a nine month non-parole period.  He also received a three year driving disqualification.  The offences arose from a police pursuit in relation to driving a conveyance taken without the owner’s consent. 

21. On 27 March 2013, the Department of Immigration and Border Protection notified the Applicant that his visa may be liable to cancellation under section 501 of the Act on character grounds.  On 10 December 2013, that Department wrote to the Applicant and advised that the delegate had decided not to cancel the visa and it would continue to provide him with permission to remain in Australia.  The letter warned that the decision did not mean that his case could not be considered again in the event of further criminal offending.

22. The Applicant’s evidence was that he did not take it seriously because he just sent in a letter and the decision was made not to cancel the visa.   

23. The Applicant was sentenced to three years’ imprisonment on 23 May 2014 for Agg B&E commit serious indictable offence – in company-S1.  The sentence commenced on 26 October 2012.  The non-parole period was one year eight months.  The sentencing judge ordered that the Applicant receive regular counselling and treatment while in custody for substance and alcohol abuse, substance and alcohol abuse relapse, and anger management and impulse control.  Further, he ordered that the Applicant be assessed on release as to suitability, admission and participation in a pro-social lifestyles and behaviour program.  Further, he recommended that on parole, the service overseeing parole direct the Applicant to accept their supervision and guidance in relation to counselling for the same issues and admission to the same type of program.

24. On 1 September 2017 the Applicant was convicted of three supply prohibited drug offences and one offence of participate criminal group contributed criminal activity-T2.  He was sentenced to three terms of imprisonment.  The longest was for supply prohibited drug greater than or equal to large commercial quantity, for which he received six years and four months commencing 17 May 2016, with a non parole period of four years commending 17 May 2016 and concluding 16 May 2020 with release subject to supervision.  The total sentence ended on 16 September 2022.

25. The sentencing judge accepted that the Applicant offended because of his need to obtain drugs, and observed that he liked mixing in a criminal group with people “showing similar disdain for authority”,  “chose to involve himself with a major drug supplier” and his job was “as a trusted intermediary” who made the delivery, collected and came back with the cash.  The judge observed that the Applicant was well aware of the damage drugs caused to people.

26. Upon release from prison on parole in May 2020, the Applicant was taken into immigration detention. 

27. The nature of the offences committed over a period of about 10 years, the frequency of offending, the sentences imposed by the courts, including increasingly longer periods of imprisonment, the increasing seriousness of offending, the cumulative effect of repeat offending, and that the Applicant re-offended after being formally warned in writing about the consequences of further offending in terms of his migration status, demonstrate that the Applicant’s offending was very serious.[8]  The nature of his offending demonstrates a disdain for Australian law.

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

    [8] Direction 79, paragraph 13.1.1(1).

28. In considering the risk to the Australian community, cl. 13.1.2(1) of Direction 79 requires decision-makers to have regard, cumulatively, to (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 reoffending.

29. The nature of the harm to individuals and to the Australian community if the Applicant reoffends is serious.  His offences include aggravated break and enter, driving offences, assaulting police and his father, and drug trafficking, which cause mental and physical harm to individuals and cost to law enforcement and emergency services.

30. The Applicant’s case was that he has strong rehabilitative prospects, and the likelihood of his engaging in further criminal conduct is low. 

31. The sentencing judge in 2017 had some confidence that the Applicant would accept support offered by his family and that he had the capacity to lead a normal community life supporting his family.  He observed that it was clear that gaol had had, and would continue to have, an impact on the Applicant, and that he sincerely did not wish to return to gaol.

32. A psychologist retained by the Applicant, expressed the opinion in her written report dated 23 February 2021, and in her oral evidence, that the Applicant has a high-moderate risk of reoffending (violent or non-violent) within two years of release. Her assessment was based on the Applicant’s completion of the Self-Appraisal Questionnaire (SAQ). There were static and dynamic risk factors.  Static risk factors cannot be changed.  Dynamic risk factors are amenable to change. 

33. The Applicant scored 5/8 in respect of alcohol and drug abuse which identified that problematic substance use is a primary criminogenic treatment need for him.  This is a dynamic risk factor.  He has attempted to address this treatment need through completion of the EQUIPS Addiction program in 2019 and by participating in a methadone and buprenorphine (Bupe) program while in detention since 2020.  The Applicant expressed to the psychologist and in other evidence that he was prepared to access further alcohol and other drug treatment on return to the community.  The Applicant told the Tribunal that methadone did not agree with him and he wanted to get a Bupe implant.

34. He scored 3/3 in relation to antisocial associates.  He recognised that his association with some peers contributed to his decision to use substances, including alcohol, cannabis, cocaine and heroin, and to become involved in criminal activity.  He reported an intention to avoid contact with these individuals and to seek social support from prosocial family members instead.

35. His criminal history score of 6/6 reflects a pattern of offending consistent with criminal recidivism.  It needs to be understood within the context of his substance abuse.  This is a static risk factor because it is historical.

36. His score of 10/18 in relation to conduct problems suggested an early history of antisocial behaviour, for example, serious school misconduct and juvenile offending, that is consistent with a life-course of persistent pattern of offending and criminal recidivism.  This is a static risk factor.

37. His criminal tendencies score was 2/27 that suggested that he has few antisocial thoughts, feelings or behaviours when compared to the normative sample.  He has no treatment needs in this domain.

38. The Applicant scored 1/5 for antisocial personality problems and reflected an individual without the manipulativeness or impulsivity that is commonly associated with antisocial and criminal behaviours.  He has no current treatment needs in this domain.

39. The Applicant’s score of 0/5 for anger, suggests that there is no clear link between his experience of anger and his offending behaviour.  The psychologist’s opinion was that his participation in the EQUIPS Aggression program in 2018 appears to have met any past aggression or anger management treatment needs and he has no outstanding treatment needs in this domain.

40. The psychologist’s opinion and recommendations were as follows. The Applicant’s offending primarily functions from his substance use, antisocial peer associations and social immaturity and his risk of reoffending can be reduced through treatment for his substance use “in the first instance”.  Treatment needs to explore the causes and consequences of his criminal involvement and promote the positive effects of living crime-free to achieve lasting treatment gains.  He would benefit from accessing community-based alcohol and other drug counselling upon his release to reinforce his learning from the EQUIPS Addiction program he completed in 2019 and receiving support to manage the risk of relapse in the community.  He will require ongoing access to Bupe to manage his opioid dependency.  Management of psychosocial factors such as peers/social activities, vocational training/employment and housing/accommodation will also be important to minimise his risk of recidivism.  His limited familial support and access to accommodation if he is returned to New Zealand, will increase his risk of returning to substance use and reoffending.

41. In the psychologist’s opinion, the Applicant did not have a good understanding of why he abused substances which would lead to reoffending.  He completed programs in 2014, avoided offending for a short period and then reoffended.

42. The Applicant’s comments in relation to his reoffending in 2016 are concerning:

    I had been released 2014 after serving my previous time I had come home drug free with a clear mind set ready to put it all behinde me and start fresh my partner had moved my daughter back down from [State 3] to be back with me I was with a job agency I started working again my partner and family helped me get my life back on track with the promise I would stay away from the crowds I was hanging around and focus on family I was giving parole all my pay slips and finished parole I was finally a free man working hard and spending time with my family me and my daughter got to develop the closest bond and we did everything as a little family I was back at church

    And had proved myself to my partner slowly she decided to let me go out and have a break when she allowed this I ended up mixing with the wrong people again behind my familys back I started to become sneaky and lie to them as if I was having a fear of missing out on something with the wrong crowd I started to pull away from my family again and my partner questioned it but by this time I had already started a cocaine and heroin habit behind her back I wasn't as good at hiding it as I thought I was and she started to connect dots to things only she knew about these habits I was hiding she took my daughter and she left and moved to [another area in State 1] instead of going the right thing and getting the help I needed when I needed it I let my drug habit spiral out of control and I blamed her fro taking my daughter and walking away…  

43. If the visa cancellation were revoked, the Applicant would be under the supervision of a parole service from the time of his release into the community until 16 September 2022.  He proposes to undertake various programs to address offending behaviours and attitudes, drug and alcohol issues, managing cravings and managing environment to address drug use and avoid other drug users and have random drug testing. Those are set out in a Risk Mitigation Plan.  It was accepted that such participation would expose the Applicant to anti-social influence from others involved in the programs.  That is inevitable.  The potential benefits of undertaking such courses outweigh that risk.

44. Throughout his criminal offending, the Applicant has had the support of his family and later his partner, which has not stopped him from reoffending.  He was moved interstate and then returned to remove him from negative influences, but apparently sought them out, as observed by the sentencing judge in 2017.  He does express remorse and regret and accepts responsibility for his actions.  Various family members believe he has changed for the better during his last term of imprisonment and detention and since the death of his father. He has been on a Bupe program in detention and plans to get a Bupe implant.  

1. As an adult, the Applicant has not breached parole.  Overall, his behaviour in prison and detention has been quite good, given his history. He plans to undertake programs and courses that address his criminal offending behaviours and attitudes. He is untested in the community.  If he breaches his parole, he may return to prison. Assuming that does not happen, I am concerned that when the constraint of parole ends, he will again seek out anti-social peers and resume substance abuse.  In the past, his family and his partner have tried unsuccessfully to stop him doing that.  His previous behaviour does not instil confidence in his future conduct. 

2. The protection of the Australian community weighs heavily against revocation of the mandatory visa cancellation.

   Best interests of minor children in Australia

3. Direction 79 specifies that the Best interests of minor children in Australia affected by the decision is a primary consideration and that eight factors must be taken into account when considering whether revocation is in the best interests of the child.[9]  The interests of each child should be given individual consideration to the extent their interests differ.[10]

   [9] Direction 79, 13.2(4)(a) to (h).

   [10] Direction 79, 13.2(3).

4. The best interests of several minor children in Australia need to be considered.

5. The Applicant’s high-moderate risk of his reoffending and possible reimprisonment, either in Australia or New Zealand, would be a negative influence on each of the relevant minor children.  If his visa cancellation was revoked and he was released in Australia, he would be under the supervision of parole authorities until 16 September 2022 and would have the opportunity to undertake programs to help him address factors that have contributed to his offending.  He will not have the supervision or opportunity in New Zealand. He plans to get a Bupe implant. The evidence does not indicate whether or how easily that would be available in New Zealand.  Those considerations lead to the conclusion that he is more likely to reoffend if he returns to New Zealand where he will have no support or supervision, apart from his partner and daughter if they do join him as his partner said.    

6. The Applicant’s eight year old daughter lives with her mother (the partner).  The partner said that while her relationship with the Applicant was on and off, it was on at the time of the hearing.  She has known the Applicant since about 2009.  The evidence of the Applicant and the partner was that the Applicant and the child are in contact every day, discussing the child’s activities.  The partner said that the child has photographs of the Applicant all over her room, at the child’s request.  When the child attended the funeral of the Applicant’s father in the middle of 2020 during COVID-19 she yelled because she could not hug the Applicant who was allowed to attend briefly.  According to the psychologist, she has not visited her father since about mid-2018 because the partner and child were not able to travel to the regional centres where he was imprisoned and more recently because of COVID-19.

7. The partner has worked to support the child and herself, until COVID-19 intervened, which has put a lot of strain on her.  She believes that the Applicant has changed for the better since his most recent convictions and imprisonment and the death of his father.  Having him in Australia and resume his life drug free, would take a lot of pressure off her and give the child emotional support, which is of the utmost importance to her future.  He would also provide financial support.

8. The partner was an impressive witness.  She is very capable, having cared for the child alone for six and a half of the child’s almost nine years, during the absences of the Applicant in prison, and most recently in detention, and during periods when her relationship with the Applicant was “off”.  The Applicant’s oral evidence was that he had been with the child for three of her eight birthdays.  He has had a limited physical presence in her life but they have retained a close bond.  That indicates that it would remain strong if he removed to New Zealand and she did not.  They could continue to communicate as they have for most of her life.

9. The partner moved away from the capital city where the Applicant’s family live most recently in about 2016, although she ensures that the child attends the Applicant’s family events and sees his family regularly.  The partner has no family support where she lives.  

10. The Applicant will live with his mother while on parole if the visa cancellation is revoked and then plans to move to live with his partner and the child, either where they live presently or in state 3 where the partner’s family live.  The partner was clear that she wants him to live with his family first before he starts living with her and the child again.  She does not want the child overwhelmed since the Applicant was in gaol for six years.  She wants a smooth transition for the child.  I infer that the Applicant will live with his mother until his parole ends in September 2022.

11. The partner said during her oral evidence that she would move to New Zealand with the child if the Applicant was deported.  She emphasised that it would be better for the child if the Applicant were permitted to remain in Australia.  I agree.  The child would continue her life as normal and be able to visit the Applicant’s family, unless and until her parents and she move to state 3 where she may have more contact with her mother’s family.  It would also be beneficial for the child because while on parole, the Applicant would be less likely to reoffend than if he returned to New Zealand where he did not have that supervision and potential to undertake programs, as discussed above.

12. The best interests of the child would be served by the revocation of the visa cancellation decision. This consideration weighs heavily in favour of revocation.

13. The Applicant has two brothers who are aged 13 and 14 and live with their mother.  If the Applicant remained in Australia, he could help look after them and guide them.  I do not accept that he would play a parental role in their lives, but rather the role of oldest brother and oldest male in the family. He plans to move away from his mother’s household when his parole ends. The best interests of the Applicant’s two younger brothers would be served by the Applicant remaining in Australia. This consideration weighs moderately in favour of revocation of the visa cancellation.

14. The Applicant has ten nieces and nephews.  They were born in: 2005, 2007, 2009, 2010, 2011, 2011, 2014, 2015, 2017 and 2018.  He has stated that his father’s death in the middle of 2020 has brought great pressure and responsibility on him to guide those children, to teach them their family values and make an impact in their lives.

15. One of his nephews has no father figure in his life and lives with his mother in the household of the Applicant’s mother.  The evidence of the nephew’s mother and the Applicant is that he is a father figure to his nephew and they are in contact every day.If the Applicant left Australia, they could continue to be in contact in the same way.  It would be better if the Applicant had a physical presence in his nephew’s life and remained in Australia, although the Applicant plans to move away from his mother’s household when his parole ends.  The best interests of this nephew weigh moderately in favour of revocation of the visa cancellation decision.

16. The Applicant claimed to be a father figure to all his nephews and nieces.  He does not have a parental role in relation to the other nine nieces and nephews.  He told the psychologist that he had daily contact with his younger nephews and nieces because they lived nearby and he would regularly assist with their care.  Given the time he spent offending and in prison, I give little weight to that evidence.  There is a lack of detail about his relationship with any of those children.  I infer that they would attend family functions which the Applicant would attend if he remained in Australia.  The best interests of the nine other nephews and nieces weigh slightly in favour of revocation of the visa cancellation.

    Expectations of the Australian Community

17. Expectations of the Australian Community is the third primary consideration.  Paragraph 13.3(1) of Direction 79 sets out the expectations of the Australian community:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate not to 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.

18. Paragraph 13.3(1) of Direction 79 is analogous to paragraph 11.3(1) of Direction 65 which was considered by the Full Court of the Federal Court in FYBR v Minister for Home Affairs.[11] At [67] Charlesworth J said in respect of “clause” 11.3:

    ….For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectations of the executive government of the day in respect of its subject matter[12].

    [11] [2019] FCAFC 185 (FYBR); the High Court dismissed FYBR’s application for special leave on 24 April 2020.

    [12] Ibid at [67] (Charlesworth J).

19. Adopting the language of Stewart J, the content of the expectations of the Australian community expressed in paragraph 13.3 is:

    … “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”[13]

    [13] Ibid at [101]; see to similar effect [75] (Charlesworth J).

20. The weight to be attached to this consideration is a matter for the decision-maker to decide.  As Stewart J observed at [103]:

    … It is also incorrect to construe the community expectations as expressing or requiring, in any particular case, either the grant or the refusal of the visa.  In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in-between the community expectation will not express or require one or the other.  That is a matter for the decision-maker.

21. The Applicant’s legal representative accepted that paragraph 13.3 of Direction 79 means that the Australian community expects non-citizens to obey Australian laws in Australia, but argued that the expectations of the community should be determined on the basis that the community is fully informed of all the facts of the matter and in this case would view the Applicant’s situation with empathy and leniency given because he:

    Has been living in Australia for over 20 years since he was 8 years old,

    Has conceded his wrongdoing and is remorseful,

    Has sought rehabilitation for his aggression and drug problems in custody

    Has made positive contributions to Australia through employment,

    Has an 8-year-old daughter that has a need for her father,

    Is strongly supported by his partner, family and friends in Australia,

    Has no family or ties to New Zealand.

22. The question for me to determine is the weight to be given to this consideration. Taking all the circumstances of this case into account, I find that the expectations of the Australian community weigh heavily against revocation of the visa cancellation.  

    Strength, nature and duration of ties

23. Of the Other Considerations to be taken into account set out at paragraph 14 of Direction 79, only two arise for consideration on the evidence in this case. The first is the strength, nature and duration of ties and the second is the extent of impediments if removed.[14]

    [14] Direction 79. Cl. 14(b) and (e) respectively.

24. Applying paragraph 14.2 of Direction 79, which relates to the strength, nature and duration of ties, the Applicant has resided in Australia for over 20 years, since he was eight years old.  He began offending when he was around 13 years old.  His evidence is that he has worked in Australia, although there was a lack of detail about for how long.  His working life has to be considered in the context of his periods of detention and incarceration.  His mother said that his father “kicked him out” from their home in 2016 because he did not have a job.  He was 23 years old.  The sentencing judge in 2013 observed that he was unemployed.  There is limited evidence of the Applicant making a positive contribution to the Australian community.

25. Relevantly, the Applicant’s whole family reside in Australia, including his partner, daughter, mother, siblings, nieces and nephews.  They are Australian citizens or residents.

26. The death of his father in mid-2020 is deeply felt by the Applicant, his mother and his sister who gave evidence.  His father is buried in Australia.  The Applicant’s mother said that she would miss him very much if he leaves Australia.  She cared for her husband who was ill from about 2011 until his death, and continues to care for her disabled son who requires constant care.  She said that the Applicant had helped her with the other children and caring for his father before he went to prison in 2016 and supported them financially.  He was now the head of the family as the oldest male. 

27. While he plans to reside with his mother while on parole, thereafter he plans to move away from his family home to live with his partner and child, either at their present location or interstate.

28. Those matters must also be considered in the context of the Applicant’s high-moderate risk of reoffending and the possibility that he will be imprisoned again, so that he would not be able to support his mother or family or partner or child practically or financially. 

29. He could provide financial support if he went to New Zealand and did not reoffend or be imprisoned.  He could contact his mother as he does now.

30. This consideration weighs in favour of revocation of the mandatory cancellation of the Applicant’s visa.

    Extent of impediments if removed

31. Clause 14.5 of Part C of Direction 79 requires consideration of the 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’, and taking into account particular factors which are addressed below.

32. The Applicant was born in New Zealand and lived there until he was eight years old.  He has never returned.  He has no family or support network there.  The sentencing judge said in 2017 the Applicant:

    … will need support and supervision when he is returned to the community.  He will need help adjusting to normal community life.

33. In Australia, he would have family support and until September 2022 supervision while on parole.  He will not have that support in New Zealand.  He may have the support of his partner and child if they return with him.

34. The Applicant speaks English.  The culture of New Zealand is not very different from that in Australia.  He is in good health and is capable of working, although his criminal history may be a greater hurdle to overcome in New Zealand where he has no community contacts, compared to Australia where his relatives and community contacts may assist him to get a job. 

35. The medical and social security systems in New Zealand are similar to those in Australia.  The evidence does not indicate whether or how easily the Applicant may get a Bupe implant in New Zealand.  He will be at a higher risk of substance abuse and reoffending if he returns to New Zealand.

36. The Applicant will have significant difficulty establishing himself in New Zealand, however, if his partner and daughter go with him as his partner stated, he would have that support.  

37. I am not persuaded that he would have “extreme difficulties” in establishing himself and maintaining basic living standards “in the context of what is generally available to other citizens” of New Zealand, as contended by his legal representative.

38. This consideration weighs in favour of revoking the mandatory cancellation of the Applicant’s visa.   

    Conclusion

39. The considerations weighing against revoking the mandatory cancellation of the Applicant’s visa are the protection of the Australian community and the expectations of the Australian community.  Those weighing in favour of revocation are the best interests of several minor children in Australia, the strength, nature and duration of ties to Australia, and the extent of impediments if removed.  The considerations weighing against revoking the mandatory cancellation of the Applicant’s visa outweigh those weighing in favour of revocation.

40. There is not another reason why the cancellation decision should be revoked.

    DECISION

41. The decision under review is affirmed.

I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated: 16 March 2021

Date(s) of hearing:	1 and 2 March 2021
Solicitors for the Applicant:	SouthWest Migration & Legal Services
Solicitors for the Respondent:	Minter Ellison

ANNEXURE 1 – APPLICANT’S CRIMINAL HISTORY

COURT DATE	OFFENCE	RESULT[15]
ADULT OFFENDING (STATE 1)
1/09/2017	Supply prohibited drug >small & <=indictable quantity-T1	·     Imprisonment: 6 months commencing 17/05/2016 concluding 16/11/2016 ·     Drug to be destroyed
	Participate criminal group contribute criminal activity-T2	Imprisonment: 9 months commencing 17/05/2016 concluding 16/02/2017
	Supply prohibited drug >indictable quantity (not cannabis)-SI	·     Taken into account on Form1 ·     Drug to be destroyed
	Supply prohibited drug >= large commercial quantity-SI	·     Imprisonment: 6 years and 4 months commencing 17/05/2016 conclude 16/09/2022 ·     Non-parole period with conditions: 4 years commencing 17/05/2016 concluding 16/05/2020, release subject to supervision. ·     Form 1 matters taken into account: Supply prohibited drug >indictable quantity (not cannabis)-SI
30/05/2016	Never licensed person drive vehicle on road – prior offence	·     Fine: $600 ·     Disqualification (Habitual Offender): Quashed ·     Disqualification – Driver: 3 years
23/05/2014	Agg B&E & commit serious indictable offence in company-SI	·     Imprisonment: 3 years commencing 26/10/2012 concluding 25/10/2015 ·     Non-parole period with conditions: 1 year 8 months commence 26/10/2012, release subject to supervision
15/11/2013	Break & Enter house etc steal value <=$60,000-T1	Imprisonment: 6 months commencing 01/01/2013 concluding 30/06/2013
10/01/2013	Drive while disqualified from holding a licence	·     Imprisonment: 6 months commencing 09/10/2012 concluding 08/04/2013 ·     Disqualification: 12 months to commence at expiration of current period of disqualification
	Not stop vehicle when directed to do so	Conviction with no other penalty
	Drive conveyance taken w/o consent of owner-T2	·     Imprisonment: 12 months commencing 09/10/2012 concluding 08/10/2013 ·     Non-parole period with conditions: 9 months commencing 09/10/2012 concluding 08/07/2013, release subject to supervision
	Drive vehicle recklessly/furiously or speed/manner dangerous	·     Imprisonment: 6 months commencing 09/10/2012 concluding 08/04/2013 ·     Disqualification: 3 years commencing 10/01/2013 concluding 09/01/2016 ·     Disqualification (Habitual offender): Quashed
	Police pursuit - not stop – drive dangerously - 1st off-T2	·     Imprisonment: 6 months commencing 09/10/2012 concluding 08/04/2013 ·     Disqualification: 3 years commencing 10/01/2013 concluding 09/01/2016 ·     Disqualification (Habitual offender): Quashed
15/11/2012	Resist officer in execution of duty-T2	Bond: 2 years Supervision
	Fail to appear in accordance with bail undertaking (BENCH - NON CONVICTION)	Bond: 2 years Supervision
	Assault police officer in execution of duty cause abh-T1	Bond: 2 years Supervision
	Assault occasioning actual bodily harm (DV)-T2	Bond: 2 years Supervision
23/02/2012	Go onto, into or remain on, in restricted area of a station	Conviction with no other penalty
	Possess prohibited drug	·     Fine: $200 ·     Drug to be destroyed ·     Costs – Court: $81
OFFENDING AS A CHILD (STATE 1)
12/07/2010	Escape police custody-T1	Full-time custody: 1 month commencing 26/06/2011
20/05/2010	Aggravated robbery-SI	·     Full-time custody: 18 months commencing 27/06/2010 concluding 26/12/2011 ·     Non-parole period with conditions: 12 months commencing 27/06/2010 concluding 27/06/2011, release subject to supervision
	Destroy or damage property	Full-time custody to rising of the Court
	Assault officer in execution of duty-T2	Full-time custody: 1 month commencing 27/06/2010
	Aggravated assault with intent to rob-SI	·     Full-time custody: 15 months commencing 27/06/2010 concluding 26/09/2011 ·     Non-parole period with conditions: 10 months commencing 27/06/2010 concluding 27/04/2011, release subject to supervision
	Aggravated assault with intent to rob-SI	·     Full-time custody: 15 months commencing 27/06/2010 concluding 26/09/2011 ·     Non-parole period with conditions: 10 months commencing 27/06/2010 concluding 27/04/2011, release subject to supervision
07/04/2010	Class A vehicle displaying unauthorised number plate	Fine: $200
	Never licensed person drive vehicle on road-1st offence	·     Fine: $200 ·     Disqualification: 3 years commencing 07/04/2010
04/03/2010	Robbery in company-SI (Call Up)	(CALL UP – in relation to court outcome on 17/12/2008): ·     Full-time custody: 17 months commencing 28/02/2010 concluding 27/07/2011 ·     Non-parole period with conditions: 5 months commencing 28/02/2010 concluding 27/07/2010, release subject to supervision
07/12/2009	Goods in personal custody suspected being stolen (not m/v)	Bond: 6 months supervision
30/11/2009	Common assault-T2	Bond: 6 months supervision
	Destroy or damage property <=$2000-T2	Bond: 6 months supervision
	Destroy or damage property <=$2000-T2	·     Bond: 6 months supervision ·     Compensation: $1740.42
17/12/2008	Robbery in company-SI (Appeal)	·     Appeal Dismissed (in relation to court outcome on 01/12/2008): In lieu full-custody: 17 months commencing 17/12/2008 concluding 16/05/2010 ·     Sentence suspended with conditions: 17 months commencing 17/12/2008 Supervision, notify the Dept of any change of address, comply with all reasonable directions and recommendations in particular alcohol consumption, anger management and participation in any programs that will help his rehabilitation, reside with his mother or at such other place that is  permitted, not to associate either physically or by communication of any kind with [name of co-offender] or [gang], not to be released from present custody except into the custody of mother
01/12/2008	Robbery in company-SI	·     Full-time custody: 18 months commencing 01/12/2008 ·     Non-parole period with conditions: 6 months, release subject to supervision until the order ceases severity ·     Appeal without stay lodged
STATE 2
05/12/2007	*Contravene conditions of a Notice	Pleaded guilty – conviction recorded  6 months – Detention Order commencing 29/10/2007 (taking into account all * offences)
	*Contravene conditions of a Notice	Pleaded guilty – conviction recorded
	**Motor Vehicle Stealing	Pleaded guilty – conviction recorded driving disqualification until 18 years of age commencing 05/12/2007 (cancelled) taking into account 2 ** offences
	*Escape	Pleaded guilty – conviction recorded
	*Dangerous Driving	Pleaded guilty – conviction recorded
	**Motor Vehicle Stealing	Pleaded guilty – conviction recorded
	Driver not holding Australian driver licence, foreign driver licence, international driving permit with alcohol in body. (B/A Reading 0.072)	Pleaded guilty – conviction recorded, 3 months driving disqualification to be served cumulatively (suspended)
	*Drive while disqualified	Pleaded guilty – conviction recorded
	*Assault a Police Officer	Pleaded guilty – conviction recorded
	*Assault a Police Officer	Pleaded guilty – conviction recorded
	*Unlawful setting fire to property	Pleaded guilty – conviction recorded
	*Stealing (Value $39.95)	Pleaded guilty – conviction recorded
	*Stealing (Value $29.99)	Pleaded guilty – conviction recorded
	*Stealing (Value $170.00)	Pleaded guilty – conviction recorded
02/07/2007	Contravene conditions of a Notice	Pleaded guilty – conviction recorded
28/05/2007	*Breach of bail conditions	Pleaded guilty – conviction recorded. Sentence taking account all offences dealt with on this court date: 1 month – Detention Order commencing 28/05/2007, wholly suspended on condition for 12 months: you must not commit any offence which if committed by an adult could be punishable by imprisonment, you must be of good behaviour and Driving disqualification until 18th birthday
	*Breach of bail conditions	Pleaded guilty – conviction recorded
	*Unlawful possession of property	Pleaded guilty – conviction recorded
	*Stealing (Value $45.97)	Pleaded guilty – conviction recorded
	*Stealing (Value $39.98)	Pleaded guilty – conviction recorded
	*Unlawful possession of property	Pleaded guilty – conviction recorded
	*Motor Vehicle Stealing	Pleaded guilty – conviction recorded
	*Drive whilst not the holder of     a driver licence	Pleaded guilty – conviction recorded
	*Motor Vehicle Stealing	Pleaded guilty – conviction recorded
	*Contravene conditions of a Notice	Pleaded guilty – conviction recorded
	*Contravene conditions of a Notice	Pleaded guilty – conviction recorded
	*Injure Property	Pleaded guilty – conviction recorded
	*Motor Vehicle Stealing	Pleaded guilty – conviction recorded
05/03/2007	*Attempted motor vehicle stealing	Pleaded guilty – conviction recorded Sentence for all 6 offences dealt with on this court date:  4 months Detention Order commencing 25/12/2006, balance suspended on condition for 12 months: you must not commit any offence which if committed by an adult could be punishable by imprisonment, you must be of good behaviour
	*Attempted motor vehicle stealing	Pleaded guilty – conviction recorded
	*Burglary	Pleaded guilty – conviction recorded
	*Stealing (Value $1500.00)	Pleaded guilty – conviction recorded
	*Breach of bail requirements	Pleaded guilty – conviction recorded
	*Breach of bail	Pleaded guilty – conviction recorded

[15] Bold text indicates, where relevant, the longest term of imprisonment/non-parole period sentenced on any particular court date.