Pomare and Minister for Immigration and Citizenship

[2008] AATA 835

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 835

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5329

GENERAL ADMINISTRATIVE DIVISION        )

Re             Cody Tamaki POMARE

Applicant

AndMinister for Immigration and Citizenship

Respondent

DECISION

TribunalProfessor GD Walker, Deputy President

Date18 September 2008

PlaceSydney

DecisionThe decision under review is affirmed.

……………[sgd]……………………...

Professor GD Walker
  Deputy President

CATCHWORDS

IMMIGRATION – visa cancellation – character grounds – applicant has criminal record – community protection and expectations considered – other considerations – community protection and expectations outweigh other considerations in this case.

…

RELEVANT ACT/S:

Migration Act 1958 (Cth) (the Act): ss 499, 501

CITATIONS

Pomare v Minister for Immigration and Citizenship and Administrative Appeals Tribunal [2008] FCA 458

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Green v Minister for Immigration and Citizenship [2008] FCA 125

Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56

Minister for immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198

Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N129

R v Henry & Ors (1999) 46 NSWLR 346

Al-Kateb v Godwin (2004) 219 CLR 562

Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766

Robtelmes v Brenan (1906) 4 CLR 395

Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054

Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458

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OTHER AUTHORITIES

Direction No 21

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REASONS FOR DECISION

18 September 2008	Professor GD Walker, Deputy President
Basic facts

1.      The applicant Mr Cody Tamaki Pomare was born in New Zealand in May 1986 and is a citizen of that country.

2.      He first arrived in Australia on 26 August 2005 and was granted a transitional special category visa (subclass TY-444).

3.      He left Australia on 2 November 2005, returning on 18 August 2006 and has not departed since.

4.      On 14 October 2006, the applicant was charged with robbery using corporal violence (otherwise recorded as aggravated robbery) and was detained at Broken Hill Correctional Centre, New South Wales.  He was convicted of that offence at Broken Hill District Court on 15 February 2007 and was sentenced to a term of two years and three months' imprisonment with a 12-month non-parole period.

5. By letter dated 11 October, the applicant was informed that his visa had been cancelled under s 501(2) of the Migration Act 1958 (Cth) (the Act). The applicant acknowledged receipt of the notice on 17 October 2007 and on 1 November 2007 applied to this tribunal for review of the cancellation decision.

6.      On 19 December 2007, this tribunal decided that it had no jurisdiction to hear the applicant because it was lodged outside the statutory nine-day time limit.  On 9 April 2008, however, Lindgren J of the Federal Court held that as the notice did not comply with s 501G(1)(f)(iv) of the Act, the nine-day time limit had not commenced to run and the application was therefore not out of time (Pomare v Minister for Immigration and Citizenship and Administrative Appeals Tribunal [2008] FCA 458). The validity of the notice had not been challenged at the initial jurisdiction hearing.

7.      The matter was remitted to the tribunal and was heard on the merits at Parramatta on 26 August 2008.

8.      Before the conviction at Broken Hill District Court, the applicant had accumulated a criminal record in New Zealand (Dannevirke District Court):

Date	Conviction	Sentence
26/11/2003	Unlicensed driver failed to comply with prohibition	Fined $300 plus court costs
28/01/2005	Breath alcohol level over 400 mg/L of breath	200 hours community work; disqualified from driving 7 months
28/01/2005	Common assault	200 hours community work; Reparation
26/05/2005	Procure/possess cannabis plant	Fined $250 plus court costs
26/05/2005	Drive while disqualified	70 hours community work; disqualified from driving 6 months

9.      The applicant was also charged with a minor burglary offence in 2002, for which he was given a good behaviour bond, no conviction being recorded.

10.     At the hearing, the applicant appeared in person, while Ms Tessa van Duyn of Clayton Utz appeared for the respondent.  The documents before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G documents”), taken into evidence as Exhibit A1, together with the other documents tendered by the parties at the hearing.  The applicant gave oral evidence in person.

Issues

11.     The issues in this case are:

(i)whether the applicant passes the character test in s 501(6)(a) of the Act, given his substantial criminal record as defined in s 501(7) of the Act; and if not,

(ii)whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 21.

Relevant law and policy

12. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant grounds in the current matter are paragraphs (a) and (c), as follows:

…

For the purposes of this section, a person does not pass the character test if:

(a)       the person has a substantial criminal record (as defined by subsection (7); or

…

(c)       having regard to either or both of the following:

(i)        the person’s past and present criminal conduct;

(ii)       the person’s past and present general conduct;

the person is not of good character; …

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13.     “Substantial criminal record “ is defined in s 501(7)

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(7)For the purposes of the character test, a person has a substantial criminal record if:

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(c)the person has been sentenced to a term of imprisonment of 12 months or more; or

…

14.     Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply.  That includes this tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583. However, s 499(2) states that s 499(1) “does not empower the Minister to give directions that would be inconsistent with this Act or the regulations”, but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.

15.     On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501.  The preamble to the direction states that it “provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501” of the Act.  The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

The applicant’s evidence

16.     At the hearing the applicant adopted his statements of 12 December 2007 (Exhibit A3) and 22 July 2008 (Exhibit A4) in which he explained that his main reason for coming to Australia was to have access to better working opportunities.  In New Zealand he had worked as a shearer since the age of 15 and had won a number of shearing titles.

17.     Shortly after arriving in Australia he realised he had become involved with an unsuitable group of Australian youths of his age.  He tried desperately to avoid their company but peer pressure got the better of him and he found himself participating in criminal activities.

18.     “Immediately thereafter on the 13 October 2006 I was forced and influenced to commit the offence of aggravated robbery.  I was sentenced to twelve (12) months' imprisonment with a fifteen (15) months’ probation and parole”.

19.     During the 12 months he had spent in prison, he had actively sought to address his offending behaviour and had successfully completed a number of rehabilitation courses, including alcohol and violence prevention, access to work and first aid.

20.     As a result, he had noticed significant changes in his attitudes towards life and his future.  The courses had proved a positive eye-opener for him.

21.     He expressed full and complete remorse and contrition to the victims and all concerned, and to the Australian community, for his wrongdoing.  While in prison he had seen for himself how damaging his conduct and the conduct of others in prison was for society, the victims, the relatives and loved ones of the victims.  Having had the opportunity to view crime at close quarters, he had concluded that crime and prison are very ugly and unattractive.  He was truly deterred from repeating his conduct and the likelihood of his re-offending was negligible.

22.     He had several family members in Australia who would provide him with strong family support and who would suffer hardship if he were removed to New Zealand.  He believed he could make a good start in the job he had been offered and was qualified in two useful trades, sheep shearing and gyprocking.  The opportunities for him to start afresh were better here than in New Zealand.  His relations with his parents in New Zealand had not been good in the past and consequently his family support in New Zealand would not be strong.

23.     He did not consider himself a threat to the Australian community and was confident that he would fulfil the requirements of his 15-month parole period.  Everyone makes mistakes when young, and he had slipped a few times in the past but asked for one more chance to prove that he could be a good Australian citizen.  His criminal record was not of the worst and those who knew him realised that he did not have a criminal nature.  He was still young and during his 12 months in prison had thought deeply about all the mistakes he had made and about what he wanted to do in the future.

24.     At the hearing, the applicant said he was sorry for his actions but that he had been young at the time.  He had learned much in jail and through his rehabilitation courses.  He wished to live in Australia where he had family support and better employment opportunities.  He would now avoid bad company because he now had goals, particularly getting back to work.

25.     Although he had blamed the fact that he had become involved with the wrong set of Australian youth, he agreed that his co-offender Tau was from New Zealand, although he had met him in Australia.  There had been more people involved in the offence, but he and Tau had been the only ones who had owned up.  He admitted having lied at the interview with police, and to the counsellor during the pre-sentence interview, but said he was now telling the truth.

26.     Asked about his claim that he was “forced and influenced to commit the offence”, he replied that he had been young, intoxicated and in the company of others, but now realised the pain that he had caused.  Reminded of the sentencing judge’s observation that he had claimed at the interview that he did not strike the victim, he replied that he had owned up to the offence straight away after the police came to the hotel.

27.     He acknowledged his New Zealand criminal record but pointed out that he had not served any prison time there.  He was 14 when he committed the burglary that had resulted in his being placed on a good behaviour bond.

28.     He agreed that all his immediate family were in New Zealand, but said he had left home at 15 and would not live with his parents if he returned to New Zealand because he did not really get on with them.  Before coming to Australia he had not had a fixed address because he had travelled around New Zealand in connection with his work as a shearer.  If allowed to remain in Australia he would live with his aunt.  He had been to her house previously but had never stayed with her in Australia.  He was no longer in the relationship that he had previously described (G p44).

29.     When asked what he would do if he were to return to New Zealand, he replied that he wanted to remain here where he had better prospects of support.  He had undertaken all the courses that were available to him in prison.  He would seek to engage in further education, whether here or in New Zealand.  He had undertaken some construction work in New Zealand, but now had the prospect of employment in gyprocking and plastering, in a position organised by his aunt.

30.     On arrival in Australia in 2005, he had declared his New Zealand convictions to the immigration authorities and was taken aside for an interview.  After a couple of hours he was allowed to proceed.

31.     He asked for one more chance.  “I’m not the bad guy it seems I am on paper”, he said.

Applicant’s supporting evidence

32.     The applicant called no witnesses at the hearing but tendered letters from his uncle Mr Thomas Pomare (Exhibit A6) and his aunt Mrs Marina Pomare (Exhibit A5).

33.     Mr Pomare said the applicant had always been a good-natured and good-mannered boy and he could not understand how he had put himself into this predicament.  He had been quite disappointed with the applicant a while ago as he had everything going for him, being the New Zealand junior shearing champion.

34.     He was not a bad person at all, but “has always been the person who hangs [out] with louts”.  He had arranged employment for the applicant as soon as he is released and all working gear would be provided for him.  He could live at Mr Pomare’s house.  He had never met his cousins (Mr Pomare’s children) and this would be an appropriate time for him to be reconciled with the family he had never come to know.  He believed the applicant could make a success of things is he were to remain in Australia.

35.     Mrs Marina Pomare wrote that she had known the applicant since he was around seven years old.  He had not had an easy life, leaving home when he was 15 because of family problems.

36.     Since then he had been forced to make his own way through life, and had become a good sheep shearer.  There was no family support for him in New Zealand, but she was willing to support him and offer him a family home.

Applicant’s Submissions

37.     The applicant filed a statement of facts and contentions (Exhibit A2), although as an unrepresented applicant he was not required to do so.  In it he submitted that he was sentenced to “a mere twelve (12) months' imprisonment and was thus “on the threshold” of the character test.  That should be regarded as being on the lowest of the low end of the scale in relation to the character test.

38.     The fact that he had been approved for parole showed that he was rehabilitated, as he had satisfied the relevant authorities that he was not a danger to the Australian community.  The community would expect that following his imprisonment and rehabilitation, the decision of the parole authorities should be respected.

39.     The applicant contended that he is an indigenous New Zealander and “in virtue of such unique culture any disruption to such uniquely culturally driven people will be devastatingly received and should be given great weight”.

40.     In Australia he had the following family members who would suffer severe pain and hardship if the decision were affirmed:

§Marina Pomare – great aunt;

§Jake Pomare – uncle;

§Tamai Puki – cousin;

§Tania Witika – aunt;

§Thomas Albert Pomare – uncle; and

§Amy Witika – cousin.

41.     His spousal relationship with his partner Hope Rautahi would suffer, causing her unbearable hardship, pain and suffering.  The degree of hardship caused to her in the event of cancellation would be overwhelming and should be given greater weight.  [At the hearing, the applicant stated that their relationship had now ended.]

42.     He had undertaken an overwhelming number of courses and programs geared towards addressing his re-offending behaviour.

43.     He had come to Australia to live and work on a permanent basis and had grown to love the country.  The extent of his extended family’s grief, pain, hardship and suffering was hard to imagine and raised compelling, compassionate circumstances meriting greater weight.  He had never previously been warned about visa cancellation.

44.     In his oral submissions, the applicant expressed regret for his behaviour but said his outlook had changed while he was in jail.  He had passed all drug tests, had incurred no disciplinary charges and had undertaken all the courses he could.  He was now more mature and rehabilitated.

45.     There were more opportunities for him here than in New Zealand, where he would have to start from the beginning.  In Australia he would have employment, accommodation and a better lifestyle.

Application of the Law and Findings of Fact

46.     As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(a), the applicant passes the character test having regard to his substantial criminal record.

47. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that the applicant does not pass the character test, I must consider whether to exercise the discretion in s 501(2) to cancel the applicant’s visa. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.

48.     In this case the applicant does not pass the character test because of his “substantial criminal record” within ss 501(6)(a) and (7).  On 15 February 2007 the applicant was sentenced in the District Court for robbery using corporal violence to two years and three months' imprisonment with a non-parole period of 12 months.  There are no countervailing circumstances.

49. I must therefore consider whether to exercise my discretion under s 501(2) to decide whether or not to cancel the applicant’s visa. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

…

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

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50.     Paragraph 2.3 sets out the primary considerations:

…

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a)       the protection of the Australian community, and members of the community;

(b)       the expectations of the Australian community; and

(c)in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

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Paragraph 2.4 explains:

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The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.

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51.     Examples of what the government views as serious offences are set out in paragraph 2.6.  This includes, in subparagraph (f), crimes of violence against persons.  Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.

52.     With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, “aims to deter other people from committing the same or a similar offence”.

Protection of the Australian Community

53.     The first issue to be discussed under this heading is the seriousness and nature of the conduct.  It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act.  The direction, which is binding on this tribunal, states in paragraph 2.6(f) that crimes of violence against persons are to be treated as very serious.

54.     In this case, the applicant was convicted of robbery using corporal violence and sentenced on 15 February 2007 to two years and three months' imprisonment with a non-parole period of 12 months.  In his sentencing remarks Judge O’Connor described the attack as “cowardly and unprovoked by two men who the victim described as larger in stature” (at pp12-13).  O’Connor J stated in conclusion that:

…

Having regard to the serious nature of the offence and the importance of deterrence both general and specific, I am of the view that a full time custodial sentence is called for.

Citizens are entitled to look to the law for protection so they [sic] that they can walk the streets without fear of physical violence and the theft of their personal property.

It is particularly disturbing that the victim was attacked because of the offenders’ perception of him being a homosexual.

…

55.     On the basis of the sentence imposed and the judge’s comments, I conclude that the offence was very serious and also note that the applicant had accumulated a prior criminal record in New Zealand.

56.     The tribunal is also to take into account any relevant matters provided by the applicant as mitigating factors (para 2.8(a)).  They should be viewed in the context of the applicant’s entire record (Green v Minister for Immigration and Citizenship [2008] FCA 125 [25]-[26]).

57.     The applicant attributed his criminal record to his youth and said that the principal offence occurred because he had been young, intoxicated and in the company of others, and that he was “forced and influenced” to commit it.  At the hearing he offered no reason for the claim that he had been “forced” into the offence, but maintained that he had been involved with the wrong set of Australian youth.  He conceded, however, that his co-offender was from New Zealand.  The matters advanced by the applicant in mitigation do not alter the conclusion that his record is very serious.

58.     The next issue for the tribunal to consider is the risk of recidivism.  As President Mathews J said, “Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending” (Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51]).

59.     As Ms van Duyn pointed out, the principal offence was not an isolated occurrence.  His New Zealand criminal record began in 2002 with a burglary count for which he was placed on a good behaviour bond.  He was aged 14 at the time.  He was convicted of assault on 28 January 2005 and sentenced to reparation and community work for 200 hours.  Three separate traffic-related offences resulted in a fine, two separate periods of disqualification and community service orders for 200 hours and 70 hours respectively.  He was fined on 26 May 2005 for a drug offence.  He had spent a total of only four months in Australia before committing the principal offence at Broken Hill.

60.     In relation to that offence, O’Connor J found that he had conspired with his co-offender, Tau, for the purpose of shifting the blame for the assault on to Tau because he had no criminal convictions and was younger than the applicant.  He lied in his interview with police in relation to the role he had played and continued that lie up to the sentence hearing, by repeating it to the author of the pre-sentence report.

61.     O'Connor J rejected his evidence that he had been unaware the victim was homosexual and that the police were effectively to blame for that suggestion.  The applicant said at the hearing that he had “owned up” to the offence, but in fact he had denied it when interviewed by the police and explained his bleeding knuckles as an injury occasioned by shearing.

62.     The applicant sought to explain those falsehoods by saying that he was “drunk and scared”, but his persistence in the conspiracy to deceive during the pre-sentence interview and up to the hearing shows an element of deliberateness and premeditation that makes it necessary to treat the applicant’s assertions of remorse and reform with some caution.

63.     On the other hand, he incurred no disciplinary charges in jail and seems to have undertaken and completed all the relevant courses that he could.  He has an offer of accommodation with his aunt and uncle and prospects of employment as a gyprocker.  His progress towards rehabilitation has not, however, been tested in the wider community.

64.     While the applicant’s risk of recidivism appears to lie in the low to moderate range, the Federal Court in Minister for immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198 held that a real risk of recidivism can include a low or minimal risk. Further, in Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN N129 at N132 -133 pointed out that:

…

The seriousness of the crime is an important consideration.  The more serious the offence the greater the affront there has been to the community and the greater the necessity there is to preclude recidivism … even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.

…

65.     Given the seriousness of his record, the tribunal should give weight to the consideration that even a low to moderate risk of re-offending could have grave consequences for the Australian community.

66.     In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons:  Direction No 21 paragraph 2.11.  As Spigelman CJ has said, “General deterrence always operates at the margin ….  However, some people will be deterred”: R v Henry & Ors (1999) 46 NSWLR 346 at 386. The deterrent effect of a particular decision is impossible to prove in advance. The concept can perhaps also be expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community.

67.     Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results.  While visa cancellation is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.

68.     As Callinan J observed in Al-Kateb v Godwin (2004) 219 CLR 562 at 659, “Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort”.

69.     The applicant made no submissions on the question of general deterrence.  Nevertheless, while deterrence cannot be a decisive, or even a substantial, factor in the exercise of the discretion, it cannot be disregarded as a factor, and indeed Direction No 21 so requires.

70.     I conclude that the primary consideration of community protection favours affirming the decision in this case.

Expectations of the Australian Community

71.     With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:

…

Visa refusal … may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.

…

72.     It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner.  Many reasons for that, including historical and economic considerations, have been advanced: Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766 at [90] to [99].

73.     In Al-Kateb, Hayne J observed that in one of its earliest decisions (Robtelmes v Brenan (1906) 4 CLR 395), the High Court had held that it is an attribute of sovereignty that every nation state is entitled to decide what aliens shall or shall not become members of its community (219 CLR at page 632).

74.     Callinan J added that entering aliens are taken to know and accept “as a term of admission” that restraint to the extent necessary to enable deportation to be imposed on them (at p658).

75.     At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]). A further limiting factor is that one should attribute to the community knowledge of the whole of the evidence before the tribunal (Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458, at para 7(m)).

76.     While the applicant’s record is not in the worst category, the applicant committed a very serious offence only a very short time after coming to Australia.  His progress towards rehabilitation has not been put to the test in the wider community.  The interview with immigration authorities in connection with his New Zealand conviction on his arrival would have made him aware that any criminal behaviour would have a bearing on his continued right to remain in Australia.  In my view the community would expect that the visa of such a person should be cancelled.

The Best Interests of the Child

77.     The third primary consideration is the best interests of the child.  The applicant has no children and there is no child whose interests require consideration under this heading.

Other considerations

78.     With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”.  These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.

79.     The applicant has no business or similar ties to the Australian community that would be affected by visa cancellation.  He is not married and is not in a de facto or similar relationship with an Australian citizen or permanent resident.

80.     The applicant contended that he is an indigenous New Zealand and “in virtue of such unique culture any disruption to such uniquely culturally driven people will be devastatingly received”.  It is difficult to know what weight to give to that proposition.  As a matter of sociological definition, one would think that all cultures are equally culturally driven (see G.D. Mitchell ed., A Dictionary of Sociology, London 1977), but even if that is not the case, it is not obvious why that should weigh against repatriating an indigenous New Zealander.

81.     The applicant's parents and all three of his siblings live in New Zealand (G p41).  He states that he has aunts, uncles and cousins in Australia, although there is evidence only from one aunt and one uncle, who says that the applicant has never met his children (the applicant’s cousins).  His aunt and uncle would presumably suffer some emotional hardship if he were removed to New Zealand, but they could remain in touch with him by telephone and through other modern communications.

82.     The applicant has not previously been formally warned about the risk of visa cancellation, but his interview with the authorities concerning his New Zealand record at the time of his initial entry should have given him some general awareness that his behaviour had a bearing on his right to enter or remain in Australia.

83.     There is evidence of progress towards rehabilitation.  It is quite recent, however, and has never been put to the test in the wider community.  As against that, there is an established pattern of repeat offending in the applicant’s criminal history.

84.     The applicant has spent relatively little time in Australia and is familiar with New Zealand society.  His immediate family all live there.  He has useful work qualifications and should have no particular difficulty in finding employment there.  There are no other significant compassionate circumstances to consider.

85.     In my view the primary considerations of community protection and expectations outweigh the other considerations in this case.

86.     The decision under review should be affirmed.

I certify that the 86 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed:   …………………[sgd]…………………………………

Renee Wallace, Associate

Date/s of Hearing:  26 August 2008
Date of Decision:  18 September 2008
Solicitor for the Applicant:                  Self-represented
Solicitor for the Respondent:             Ms T van Duyn, Clayton Utz