Peters and Minister for Immigration and Border Protection (Migration)

[2017] AATA 1414

Peters and Minister for Immigration and Border Protection (Migration) [2017] AATA 1414 (6 September 2017)

Division:GENERAL DIVISION

File Number(s):      2017/3643

Re:Robert Peters  

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment

Date:6 September 2017  

Place:Sydney

The decision under review is affirmed.

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

Deputy President B W Rayment

Catchwords

MIGRATION – non-revocation of mandatory cancellation of visa – character test – substantial criminal record – primary and other considerations under Ministerial Direction No. 65 – protection of the Australian community – expectations of the Australian community – decision affirmed

Legislation

Administrative Decisions (Judicial Review) Act 1977, ss 5(2)(f), 6(2)(f)

Crimes Act 1900 (NSW), s 193C

Migration Act 1958, ss 499(1), (2A), 500(1), 501CA, (4)

Cases

Baker v Minister for Immigration and Citizenship [2012] FCAFC 145

Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68

Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141

Minister for Immigration & Multicultural Affairs v SRT [1999] FCA 1197

Minister for Immigration and Ethnic Affairs, Re v Agazio Daniele [1981] FCA 212

Neat Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; 216 CLR 277

Pochi, Re and Minister for Immigration and Ethnic Affairs [1979] AATA 64; 36 FLR 482

R v Secretary of State for the Home Department; Ex parte Venables [1997] UKHL 25; [1998] AC 407

Secondary Materials

Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Deputy President B W Rayment

6 September 2017

1. The applicant for this review is aged 32 years.  When he was three, he arrived in Australia on his father’s or mother’s passport from New Zealand and was granted a temporary visa.  He has lived here ever since.

2. He arrived with other siblings.  When he was seven one of his elder brothers committed suicide.  His parents separated and ultimately divorced and the applicant was a very troubled boy.  At the age of ten he began to take drugs, and by the age of twelve he was addicted. 

3. He has struggled with drugs off and on ever since.  As a very young person he turned to petty crime to feed his habit.  He encountered the juvenile justice system but was not put into any juvenile detention centre.  His record is a long one.  The records provided to the Tribunal commence when he was fifteen.  There are more than fifty entries in his record, all or most of which involve drugs or were fuelled by drugs.

4. On three occasions he has been sentenced to a term of imprisonment for 12 months, twice for 18 months.  Two of the 12 month sentences were served concurrently.

5. Another tragic loss which the applicant suffered occurred when he was 27.   His brother Richard, a sibling close in age to the applicant, was murdered.  That event led him to plummet into drugs again severely.

6. His brother Richard left a son, now aged seven, Dylan, who lives mainly with the boy’s mother and at regular intervals a week or a fortnight apart, with the applicant’s mother. The relationship between the applicant and his nephew by his brother Richard is referred to further below.

7. All of his surviving immediate family lives in Australia, as does his girlfriend with whom he has had (apart from a separation of two years) a continuous relationship since 2009.

8. His father lives in Queensland and that is the place where the applicant has found himself most free of his drug addiction.  He has his father’s support there and that of other relatives.  In the applicant’s view, Sydney is a place of much greater temptation for him.

9. The applicant has repeatedly made a number of significant attempts to rehabilitate himself by obtaining employment in a variety of occupations, enrolling in a bridging course at Griffith University aimed at his attaining university entrance in a sports science course, which would have entitled him to be employed as a personal trainer. That course was incomplete when he returned to prison.  He also obtained some qualifications while incarcerated and obtained a year 10 equivalent qualification and a number of certificate qualifications and a forklift ticket.

10. Since October 2016, immediately after serving his most recent term of imprisonment, he has been in the Villawood Detention Centre awaiting, first, the decision of the delegate of the Minister concerning his application to revoke the cancellation of his visa, and, more recently, waiting for the present application to this Tribunal to come on for hearing.

11. The jurisdiction of the Tribunal to hear this application and to review the delegate’s decision is specified in s 500(1)(ba) of the Migration Act 1958 (the Act). Section 501CA applies in this case because the Minister made an original decision to cancel the applicant’s visa, with the consequence that the applicant would be obliged to return to New Zealand. That original decision once made caused s 501CA to be engaged. Pursuant to s 501CA the Minister gave the applicant a written notice giving particulars of relevant information concerning him, and inviting him to make representations to the Minister about revocation of the original decision, and the applicant did so. The Minister, by his delegate, declined to revoke the visa cancellation and the applicant brought these proceedings, as was his right under s 500(1)(ba).

12. The duties of the Tribunal, like those of the original delegates of the Minister making decisions now subject to review, are constrained in many respects by a direction made by the Minister under s 499 of the Act. Section 499(2A) provides that a person or body must comply with a direction made under s 499(1), and the Tribunal is a body, thus bound by the direction made by the Minister on 22 December 2014 which is Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the Direction).

13. Part C of the Direction specifies considerations which must be taken into account in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.  The reason the cancellation is described as a mandatory one is that s 501(3A) of the Act provides that in a case where the visa holder is serving a term 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, the Minister “must cancel” a visa if the Minister is satisfied that the visa holder does not satisfy the character test, because he has a substantial criminal record. This expression is satisfied by the person having been sentenced to a term of imprisonment of 12 months or more, amongst other things. The mandatory cancellation in this case is the original decision, which was made while the applicant was serving his most recent term of imprisonment.

14. The Direction is very prescriptive. It nominates primary and other considerations to which decision-makers must have regard. Paragraph 8(4) of the Direction states that primary considerations should generally be given greater weight than the other considerations. Paragraph 7(1)(b) states that the decision-maker must take into account the considerations in Part C, “in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked”. The Direction does more than indicate subject-matter to which regard must be had, and suggests or prescribes the way in which certain factors should be dealt with.  The Direction does not bind Ministers (and other elected officials who exercise their powers) as that would be an unlawful fettering of discretion:  Bochenski v Minister for Immigration and Border Protection [2017] FCAFC 68. The principle involved was described by Lord Browne-Wilkinson in R v Secretary of State for the Home Department; Ex parte Venables [1997] UKHL 25; [1998] AC 407 at 496-497:

    When Parliament confers a discretionary power exercisable from time to time over a period, such power must be exercised on each occasion in the light of the circumstances at that time. In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way in which he will exercise his power in the future ... By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise of that power factors which may then be relevant to such exercise.

    These considerations do not preclude the person on whom the power is conferred from developing and applying a policy as to the approach which he will adopt in the generality of cases ... But the position is different if the policy adopted is such as to preclude the person on whom the power is conferred from departing from the policy or from taking into account circumstances which are relevant to the particular case in relation to which the discretion is being exercised. If such an inflexible and invariable policy is adopted, both the policy and the decisions taken pursuant to it will be unlawful.

15. Therefore s 499 of the Act and the Direction may displace an important principle of administrative law, to the extent to which, on the proper construction of the Direction, the principle described by Lord Browne-Wilkinson has been infringed, in relation to decision-makers other than the Minister himself or herself. The part of Lord Browne-Wilkinson’s speech just quoted has been described in the High Court as an established principle, one also embodied in ss 5(2)(f) and 6(2)(f) of the Administrative Decisions (Judicial Review) Act 1977: see Neat Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35; 216 CLR 277 per Gleeson CJ at 286-7 [17]. Delegates and this Tribunal are bound by the Direction when exercising the power vested in the Minister under s 501CA(4) to revoke the original decision, (even though the Minister himself is not so bound): Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141, which dealt with an earlier direction quite similar to the Direction in this matter. See also Baker v Minister for Immigration and Citizenship [2012] FCAFC 145. The statute itself, in s 499 of the Act, permits the Direction to fetter the discretion of delegates and this Tribunal.

16. The Tribunal is charged with the duty of reaching the decision which is objectively the right one to be made, usually described as the correct and preferable or the correct or preferable decision.  Together, section 499 of the Act and the Direction may effectively qualify that duty in some respects.

17. It will be convenient next to refer to the material findings of fact made by me in this case under the categories mentioned in the Direction, except where a detailed statement of such findings would be merely repetitive.  The whole of the material is to be considered in the light of the whole of the evidence in the making of the right decision. Paragraphs 6.1(3) and 13(1) of the Direction provide that where the discretion to consider revocation of cancellation of a visa is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case, that is, the whole of such circumstances.  The principles mentioned in paragraph 6.3 of the Direction will affect that consideration.

18. The primary considerations mentioned in paragraph 13(2) will be discussed in turn.

19. I 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.  I must consider the nature and seriousness of the applicant’s conduct to date, and the risk to the community should he commit further offences or engage in other serious conduct.

20. As I have said, there are more than 50 entries in the applicant’s criminal record. In the period between 7 February 2000 (when the applicant was about to turn 15) and 15 April 2004 (when he was 19) he appeared on eight occasions before the Cobram Children’s Court and on one occasion in September 2002 before the Campbelltown Youth Drug Court.  He was dealt with for offences such as be carried in a conveyance taken without the consent of the owner, having goods in custody reasonably suspected of being stolen, possession prohibited drug, larceny and break and entering building (steal). Mostly he was fined for those offences although when he was 17 he was required to serve community service for 150 and 25 hours served concurrently.  Insofar as the offences involving stealing were concerned, they appear to have been motivated by a desire to pay for his drug habit.

21. Just before his 18th birthday he committed what was a very serious offence, for which he was sentenced in February 2005 to “alternative periodic detention” for two years and three months with a non-parole period of one year.  The offence was described as “maliciously inflict grievous bodily harm in company”.  The applicant said that he and a friend were driving and a pedestrian, apparently drunk, attacked their vehicle by thumping on it and then by throwing a brick through the side window, shattering it. The applicant, who told me he was then affected by alcohol and drugs, had an altercation with the man as a result of which the man was very seriously injured.  The applicant was required to undertake developmental programs and aggression programs under supervision.

22. There followed a three year period between July 2005 and June 2008 when he was not before any court. Then between June 2008 and November 2010 he was before local courts, mainly for driving offences, although one charge was brought against him for possessing a prohibited drug. In the whole of that period he had no driving licence, and yet drove vehicles.  He was fined and disqualified from driving.

23. On 2 March 2011, he was on remand in prison awaiting trial in the District Court.

24. He was before the District Court on 2 September 2011 when he was aged 26, charged with a range of offences.  Three offences related to drugs were involved, one of supplying a prohibited drug, for which he was sentenced to an 18 month term of imprisonment, commencing on 2 March 2011, with a six month non-parole period.  In that sentence some of the other charges of which he was convicted were taken into account. Other charges included driving while under the influence of alcohol or drugs, and driving while disqualified, and dealing with property the suspected proceeds of crime.

25. On 29 December 2011 he was back in prison awaiting trial before a local court and was sentenced on 1 February 2012 for driving while disqualified from holding a licence to a term of imprisonment for four months commencing on 29 December 2011, and was further disqualified from holding a licence. At the same time he was convicted of possession of a prohibited drug. On 6 March 2012 he was charged with possessing a prohibited drug and was sentenced to a 12 month term of imprisonment, with a nine month non-parole period.

26. In August 2013 he was again charged with two offences of driving whilst disqualified and for each of those offences he was imprisoned for 12 months from 10 August 2013, with a non-parole period of 9 months. He was also convicted of charges involving the possession of a false or altered licence and stating a false name or home address.

27. In December 2014 he was fined at a local court for possessing a prohibited drug.

28. In May 2015 he was again fined by a local court for possessing a prohibited drug and was also convicted, on his plea of guilty, of dealing with property suspected proceeds of a crime, and was given a suspended sentence of 18 months, conditional on his entering into a good behaviour bond.  The suspension of that sentence was revoked on 7 April 2016 in circumstances next referred to.

29. On 15 January 2016 he was back on remand awaiting trial before the local court and on 7 April 2016 he was dealt with for a range of offences and the suspension of his sentence just mentioned was revoked. The offences were a charge of common assault to which he pleaded guilty, possession of a prohibited drug, and having goods in his possession reasonably suspected of being stolen.  A non-parole period of seven months was fixed for the 18 month sentence.

30. The applicant gave evidence about the circumstances relating to the charge of dealing with property being the suspected proceeds of crime.  The evidence was to the effect that he was not in fact guilty of the crime, and that the property in question was the sum of approximately $850 which was money belonging to him and earned lawfully. 

31. He advanced an explanation to his having pleaded guilty. The offence of dealing with property suspected of being proceeds of crime arose under s 193C of the Crimes Act 1900 (NSW). Elements of the offence are that the offender deals with the property and that there are reasonable grounds to suspect that the property is proceeds of a crime. There was an available defence under s 193C(2), which the applicant did not rely upon.

32. I received the evidence provisionally in order to evaluate its relevance to this review in the light of the applicable law. In Re Minister for Immigration and Ethnic Affairs v Agazio Daniele [1981] FCA 212, the Full Federal Court (Fisher, Davies and Lockhart JJ) heard an appeal from the decision of a Deputy President of this Tribunal who recommended that a deportation order be revoked and remitted the matter to the Minister for reconsideration. The applicant in that case had shot and killed another person, and despite his conviction by the jury’s verdict, the Deputy President conceived it to be his duty to examine with care the conduct for which the applicant was convicted in order to ascertain the case made against him and which must necessarily have been accepted by the jury in giving their verdict. The reasons of the Full Court included the remark that “the Tribunal could itself examine all relevant facts including the facts behind the conviction, as was done in Ziems’ case, and in my view, in the review of the order that Mr. Daniele be deported, it was proper that it should do so”.  The Full Court referred, as had the Deputy President, with approval to remarks made by Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; 36 FLR 482.

33. Pochi, a decision which was affirmed on appeal by the Full Federal Court, contains a valuable statement in general terms of the Tribunal’s first President for the guidance of members of the Tribunal in their future performance of their functions. In a case of deportation based upon a conviction, it is not open to challenge a conviction which has not been quashed. However the significance of the conviction in the exercise of discretion will vary from case to case. The conduct of which the alien has been found guilty should be investigated to determine the case made against him, which the jury must have accepted in returning their verdict.  Brennan J (as he then was) also observed that where the Minister, or the Tribunal on review, goes beyond the conduct which founded the conviction in order to make an appraisal as to where the best interests of Australia lie, the Minister must bear the burden of proving such circumstances. The Full Court, by majority, specifically agreed that any conduct (that is, conduct not involved in the conviction itself) alleged against the applicant should be established to the satisfaction of the Tribunal by some rationally probative evidence and not merely raised before it as a matter of suspicion or speculation.

34. Of course, Pochi did not involve consideration of the Direction, nor its predecessors, and nor did Daniele.

35. In Minister for Immigration & Multicultural Affairs v SRT [1999] FCA 1197 the Full Court of the Federal Court (Branson, Lindgren and Emmett JJ) again restated the proposition that it is not open to this Tribunal to go behind a conviction.

1. In the result, I reject the evidence of the applicant to which I have referred in paragraph [31] above. It is not open to the Tribunal to go behind the conviction in question. The plea of guilty involves at least that the essential elements of the offence were not in contest, including the fact that the property was such that there were reasonable grounds to suspect that it was the proceeds of a crime.

2. I am told that the sentencing remarks of 18 May 2015 are unavailable. A statement of facts prepared for the prosecution was placed before me, which confirms the evidence of the applicant that the property involved was cash in the sum of $830.

3. The Minister tendered misconduct reports dated in March and May 2016 relating to the applicant’s detention at Cessnock Correctional Centre. The applicant gave limited evidence concerning each of those matters, and seemed to contradict the account of the correctional officers as to things said by the applicant to correctional officers. The full circumstances of those matters are not apparent to me from the evidence and I make no findings adverse to the applicant about either of them.

4. Exhibit R1 also contains details of the offences referred to in the applicant’s record of breach of bail offences. The applicant was released on bail while he awaited trial on some of the offences to which these reasons refer. He had reporting requirements which he failed to comply with in October 2014, and at the end of that month, he turned himself in at Burwood Police Station explaining his non-attendance by stating that he had “been lazy”.

5. There is another offence in the applicant’s record, namely the offence of supply prohibited drug in indictable quantity (not cannabis) for which he was sentenced to a term of 18 months imprisonment on 2 September 2011. The applicant said that he was transporting a large number of pills intended for use by himself and others.  If that suffices for the offence, then the evidence does not contravene the conviction. If it does not, then the evidence would tend to deny the conviction and I cannot pay regard to it.

6. The common assault charge to which the applicant pleaded guilty on 7 April 2016 involved his girlfriend, with whom he had been taking drugs at a hotel, and was associated with a dispute between them which appears to have been fuelled by drugs. He was sentenced to two months imprisonment on that charge, to be served concurrently with the main sentence imposed upon him that day. That involved much less serious violence than that for which he was convicted on 9 February 2005 and consisted of several slaps. The applicant and his girlfriend are still in a close relationship and he told the Tribunal that they are in discussion about whether she will accompany him to New Zealand in the event that the decision under review is affirmed.

7. The applicant was also convicted on 7 April 2016 of the offence of having goods in his personal custody suspected of being stolen. The applicant said that the property in question was his girlfriend’s ATM card.  I have no further evidence before me about that offence.

8. The remaining offence on the applicant’s record is a conviction for larceny at the Newtown Local Court on 12 August 2016.  The applicant told me that he stole a sum of money, and the record indicates that it involved less than $2,000. The applicant was sentenced to a term of imprisonment of two months, which resulted in him being released from gaol in October last year instead of August last year. In October, as I have mentioned, he was transferred to Villawood Detention Centre.

9. His history is very much drug related. It involves offences of dishonesty, one of drug supply, many of driving while unlicensed, and while disqualified, other driving offences, isolated acts of violence, the main one when he was much younger, and multiple offences except during the periods of respite to which I have referred. For the last six years, he has spent the majority of his time in prison for various offences.

10. On two occasions the applicant was warned in writing by the Department of Immigration and Citizenship (as it then was) that in the event of further offending his visa may be cancelled. The first warning was sent to him on 9 September 2008, and the second on 30 April 2012. In April 2012, his grief about the recent death of his brother Richard may have made its impact less significant. The fact of the warnings and the subsequent re-offending are matters to which regard is to be had in accordance with paragraph 13.1.1(1)(g) of the Direction.

11. Such a record suggests that without external help, there is a significant risk that he will re-offend, especially if he has recourse to drugs. Members of the community would clearly be exposed to harm if he reoffends. These are matters to which regard is to be had cumulatively, under paragraph 13.1.2(2) of the Direction. His history suggests that he will respond positively to the removal of stimuli to further drug use. That has been his experience in Queensland. He has also attempted to rehabilitate himself both by fitting himself for employment and further education, obtaining employment, and seeking to qualify himself for university entrance.  The remarks on sentence of 7 April 2016 record that he had attended the 12 step recovery program in Queensland and completed a 12 week session without missing one of them, and the report of those who conducted the program stated that his growth in the program was tangible and that “he was clearly turning a corner in his recovery”.  Despite his record, he is not a man without hope, and that is a matter relevant to the likelihood of him engaging in serious conduct in the future.

12. The magistrate took the prospects of rehabilitation into account in fixing a non-parole period of seven months in relation to the his revocation of the suspended 18 month sentence, because of the special circumstances to which he referred.[1]

    [1] See Exhibit R3, G-Documents, pp 62-3.

13. Another primary consideration referred to in the Direction is the best interests of minor children in Australia. The applicant’s nephew by his late brother Richard is seven years old. He has contact with the nephew when he is at liberty and when the boy is with the applicant’s mother. Relations are, to say the least, strained between the nephew’s mother and the applicant and the nephew lives mainly with his mother. The nephew has not lived full-time with the applicant. The applicant strongly wishes to play a role in his development. In recent years his involvement in his nephew’s life has been limited because of the applicant’s imprisonment, followed by his time at Villawood. Especially if the applicant becomes rehabilitated, and perhaps in any event, it appears to me that it would be in the best interests of the nephew for him to be able to play a meaningful role in his nephew’s development. In the event that the reviewable decision is affirmed, contact between the applicant and his nephew may of course be possible, albeit to a more limited extent than would be the case if the reviewable decision were set aside. I have made findings relevant to paragraphs 13.2(1), (4)(a) and (4)(e) of the Direction. Dealing with the other matters referred to in the paragraph 13.2, insofar as relevant, I do not find that the applicant’s prior conduct or his likely future conduct is likely to have a negative impact on the child. I do not find that any matter referred to in paragraph 13.2(4)(g) or (h) has occurred.

14. I have regard to the expectations of the Australian community in accordance with paragraphs 6.3 and 13.3 of the Direction. This factor is another primary consideration and therefore has special importance. The record of the applicant, his demonstrated propensity to re-offend in the past, on the one hand, and his ties to this country and the efforts made by him especially in Queensland to rehabilitate himself, coupled with the absence of any offending in Queensland, and his most unfortunate personal circumstances, including the trauma which he suffered as a result of the death of two of his brothers, on the other hand, together with the uncertainties affecting his possible future in New Zealand, are all factors likely to affect that question. The expectations of the Australian community are likely to be diverse and qualified rather than clear and uniform.

15. Among the other considerations mentioned in paragraph 14 of the Direction, to which I now turn, is the strength, nature and duration of the applicant’s ties to Australia. The applicant has lived here since he was three. His two visits to New Zealand have been brief. He does not really know that country. He was the only witness to give oral evidence before me.  However his case includes a letter written by each of his father and his mother. His father refers to the fact that during a period of ten months while the applicant stayed with him in Queensland, he enrolled himself in university, weaned himself off drugs cold turkey, obtained a driver’s licence and dove headlong into personal training to occupy his time as fully as possible. He adds: “Also we both engaged in a programme of self-healing called Recovery Road, run by Mission Serenity. This has been very rewarding in enabling us to reconnect”. He records that with the help of Centrelink after his return to Queensland, he was able to gain work at the Woolworths Distribution Centre. The applicant is his father’s last living son. He says that his son’s criminal record does not show his true heart that lies beneath the mask. He adds; “Robert is close to his sister’s children Pauline, David, Toby and Ollie, always encouraging them to not do what he does, to ‘fly right’ for their own self-worth”. (His sister’s children are no longer minors).

16. His mother wrote an email of 31 July 2017 in which she mentioned that the applicant speaks to his nephew Dylan frequently by phone. She says that the applicant has no family in New Zealand as the Peters are all here in Australia and all her siblings are scattered all over the world or passed on. She concludes with the phrase “I do know that given the chance he will do the right thing”. She also refers to an elder brother Theo who has cerebral palsy who is also close to the applicant, who keeps an eye on him.

17. The applicant speaks warmly of his girlfriend Marlia with whom he still has a close and loving relationship. She has assisted the applicant to make representations to the Minister. As mentioned earlier, she and the applicant are in discussions about her possibly joining the applicant in New Zealand if he is returned there.

18. Paragraph 14.5 of the Direction refers to a further non-primary consideration, namely the extent of any impediments that the applicant may face if removed to his home country, in establishing himself and maintaining basic living standards, taking into account, amongst other things, his age and health.  He will be able to maintain basic living standards if he can be rehabilitated, and perhaps not otherwise. The applicant has found respite from his drug problem in Queensland but not in the Sydney area. He had assistance in Queensland from his father and from Mission Serenity. He spoke of a lady who had contact with him from Griffith University, who had agreed to have him back in the bridging course if he is able to return. Whether he will be able to rehabilitate himself in New Zealand is uncertain, especially without the help of persons such as his father. Comparing his past with a future in New Zealand is obviously speculative. I enquired of the respondent whether in the future he may be able to return here on a visitor’s visa, assuming that he is of good character in New Zealand. The Tribunal has now been informed by the respondent that if the cancellation of his present visa is not revoked, he will, according to the current regulatory regime, be ineligible to return to this country under any visa, including a visitor’s visa.  That is subject to one exception under the present regime: if the Minister personally grants him a permanent residency visa in Australia, then he may return here. That eventuality seems unlikely in the present circumstances. Therefore, while those with whom he has links may visit him in New Zealand, he will, I should assume, be unable to visit them.  Since he has been able for a period of time to obtain respite from his addiction with his father’s help, his only hope of obtaining such help in person in the future from his father will be if his father visits him. Of course, he may find appropriate help in New Zealand. If he obtains an income in New Zealand he may, of course, assist his father with the expense of visiting him there.

19. On balance, the primary considerations to which the Direction requires a decision-maker to give, in general, greater weight, favour the affirming of the decision under review. The other considerations to which I have referred do not take this case out of the general in my opinion. In any event, independently of paragraph 8(4) of the Direction, I do not consider that the “other considerations” to which I have referred outweigh the primary considerations. Accordingly the decision under review is affirmed.

I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment

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

Associate

Dated: 6 September 2017

Date(s) of hearing:	21 & 22 August 2017
Applicant:	In person
Solicitors for the Respondent:	Ms L Crick, Clayton Utz