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

RDPW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2216 (14 July 2020)
Division:GENERAL DIVISION
File Number(s): 2020/2433
Re:RDPW

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member M Griffin QC
Date:14 July 2020
Place:Sydney

The decision under review is affirmed.
..........................[sgd]..............................................
Senior Member M Griffin QC
CATCHWORDS
MIGRATION – subclass 444 special category visa – citizen of New Zealand – failure to pass character test – substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – considerations under Direction No. 79 – primary considerations – other considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 500(1)(ba), 501, 501(6)(a), 501(7)(c), 501(CA)(4), 501(CA)(1), s 501(3A)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – paragraphs 13, 14
REASONS FOR DECISION
Senior Member M Griffin QC
14 July 2020
BACKGROUND

On 20 April 2020, pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act) a decision was made, refusing to revoke mandatory cancellation of the Applicant’s Class TY (subclass 444) Special Category visa. The Applicant seeks a review of the original decision.
The Applicant was born in January 1996, and is a citizen of New Zealand. He is currently 24 years old. He first arrived in Australia on 12 February 1997 with his family and, although until 2012 he returned to New Zealand on a regular basis, he did so for relatively short periods only, in substance, residing in Australia since he was 13 months old.
The Applicant has 2 minor children, aged 5 ½ and 3 years. The Applicant also has a half-brother, who was born in 2007, as well as other family members living in Australia.
The Applicant has an extensive criminal history.
ISSUES
The issue in this review is whether the original decision to cancel the Applicant’s visa should be revoked pursuant to s 501 of the Act. The Tribunal may revoke the original decision if the Tribunal is satisfied:
(a)that the Applicant passes the character test as defined by section 501 of the Act; or
(b)
there is another reason why the original decision should be revoked

(s 501CA(4)(b)).
RELEVANT LEGISLATION AND POLICY
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).
Subsection 501CA(4) provides that:
4The Minister may revoke the original decision if:
a)the person makes representations in accordance with the invitation;
and
b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Subsection 501(6)(a) provides that a person does not pass the "character test" if the person has "a substantial criminal record". A person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more: s 501(7)(c).
Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction no. 79. which commenced on 28 February 2019). The relevant paragraphs of which are set out below and describe the framework within which the Tribunal’s discretion is to be exercised.
The Preamble of Direction no. 79 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly include that:
(a)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens;
(b)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere;
(c)a non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to forfeit the privilege of staying in Australia;
(d)in some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa;
(e)while Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period of time, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age; and
(f)the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
Part C of Direction no. 79 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises three "primary considerations" and several specified, but non-exhaustive, "other considerations", which must be taken into account.
Pursuant to Part C of Direction no. 79, the Tribunal must, to the extent that they are relevant to this case, take into account three primary considerations and other considerations. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations. These principles are of course dependent upon the facts and circumstances of each case.
The three primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Primary Consideration 1 – Protection of the Australian community
Paragraph 13.1 of Direction no. 79 provides:
(1) 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.
(2) Decision-makers should also give consideration to:
(a) The nature and seriousness of the non-citizen’s conduct to date; and
(b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The two limbs of paragraph 13.1(2) that the Tribunal must consider when assessing the protection of the Australian community are set out below.
The nature and seriousness of the conduct
Sub-paragraph 13.1.1 of Direction no. 79 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes, in summary:
(a)the principle that violent and/or sexual crimes are viewed very seriously;
(b)the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)the principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)the sentence imposed by the courts for a crime or crimes, subject to (b) above;
(e)the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status; and
(i)where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention is serious.
The risk to the Australian community
Paragraph 13.1.2 of Direction no. 79 states that decision-makers must have regard, cumulatively, to the following:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.
Primary Consideration 2 – Best interests of minor children in Australia affected by the decision
In relation to each child under the age of 18, decision-makers must decide whether revocation is in the best interests of that child.
In considering the best interests of the child, the following factors must be considered where relevant:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Primary Consideration 3 – Expectations of the Australian community
Paragraph 13.3 of Direction no. 79 provides:
(1) 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 to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.
The principles to be applied, as set out in paragraph 6.3 of Direction no. 79, state that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australia community. It is also the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes.
The length of time a non-citizen has been making a positive contribution to the Australian community and the consequences of the visa refusal or cancellation for minor children and other immediate family members in Australia are relevant considerations.
Other Considerations
The Tribunal must also take into account other considerations insofar as they are relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties to Australia;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
International non-refoulement obligations
The considerations at paragraph 14.1 of Direction no. 79 include (but are not limited to):
(a)a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations;
(b)the existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa;
(c)claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled);
(d)where a non-citizen makes claims which may give rise to international nonrefoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked; and
(e)any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated.
Strength, nature and duration of ties
The considerations at paragraph 14.2 include:
(a)how long the non-citizen has resided in Australia, including the age of arrival in Australia, the period of offending and positive contributions to the Australian community; and
(b)the strength, duration and nature of any family or social links with Australian citizens and Australian residents, including the effect of non-revocation on the non-citizen’s immediate family.
Impact on Australian business interests
Paragraph 14.3(1) of Direction no. 79 notes an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Impact on victims
Paragraph 14.4 of Direction no. 79 provides:
'Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.'
Extent of impediments if removed
Paragraph 14.5(1) of Direction no. 79 provides that the extent of impediments if removed 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), taking into account: age and health; whether there are substantial language or cultural barriers; and the availability of any social, medical and/or economic support.
DISCUSSION
Character Test
In accordance with s 501(6)(a) of the Act, the Applicant has a ‘substantial criminal record’ and accordingly, he does not pass the character test.
The question for the Tribunal is whether it is satisfied that there exists another reason for revoking the cancellation decision.
Criminal History and Behaviour
The Applicant commenced offending as a juvenile about the age of 15 years and was first dealt with in 2011.
The Applicant presently is 24 years of age and the pattern of offending is both continuous, relentless and involves a range of offence types from mild dishonesty (fare evasion) to serious offences of violence including robbery and domestic violence. Allowance of course must be made for the relative youth of the Applicant, particularly during the early years of offending.
The Applicant’s offending does not disclose a specific pattern in relation to a specific type of crime.
The Applicant’s history of illegal substance use has played a significant role in the frequency of his offending.
The Applicant makes a number of submissions in his favour which the Tribunal views as having some substance, including:
·With respect to future risk, the Applicant is remorseful for past offending and has insight into the causes of his offending, including drug dependency and addiction. He has insight into the level of nature of rehabilitation required to remain drug-free.
·Given his youth and long history of substance abuse, the Applicant’s maturity and commitment to seeking rehabilitation and counselling limits his risk of re-offending, further limited by the protective factors of parental support and of family support and by his appreciation of the responsibility for his two young children.
·The risk of re-offending is minimised by his emergent realisation that he has likely exhausted all of his chances and regrets of his former flagrant disregard for the chances afforded to him in the past.
·The Applicant is remorseful and has insight into his drug use and its connection to his offending behaviour.
·The controlled environments of incarceration and detention have acted to provide another opportunity to be free of drugs. He has had time to reflect on his past behaviour and he is committed to engaging in relevant and pertinent rehabilitation. The Applicant’s past drug offending has been for personal use only.
However, what is particularly serious is that, having received a salutary warning by the prospect of visa cancellation in 2018 and the subsequent return of his visa by this Tribunal, nonetheless, the Applicant continued to offend and, in my view, in a particularly serious manner. Not only was there an offence of dishonesty perpetrated by theft in relation to a public facility, a lifesaving club with property valued at about $9,000, but worryingly, there were attempts by the Applicant to use fake medical certificates to avoid the requirements of reporting to a police station according to his bail conditions. This, in my opinion, is no mere spur-of-the-moment lapse of control but demonstrates a determined and continuing criminal conduct. This is so, in the Tribunal‘s opinion, despite those certificates, other documentary evidence and statements made by other witnesses, including his mother and the Applicant himself, which suggest rehabilitation has at least commenced. Nothing could be further from reality in the Tribunal‘s view.

Having suffered the real prospect of visa cancellation, within 2 months, the Applicant was once again offending.
The Tribunal takes into account the various documentary exhibits suggestive of rehabilitation, together with the evidence of the Applicant and his mother. However, when that body of material is considered against the continuity of offending, and particularly the offending within a short period, following a favourable decision by this Tribunal in relation to the Applicant’s last visa cancellation case, the Tribunal cannot ignore that the Applicant commenced serious offending again. That offending was perfectly deliberate, in the Tribunal‘s view, and not merely the result of a spur-of-the-moment lapse of otherwise well-intentioned behaviour.
It is this last body of offending including, as it does, different types of property offences and dishonesty offences which, in my opinion, change the complexion of the Applicant’s conduct and demonstrates no appreciable prospects of rehabilitation.
The Applicant’s offending is, therefore, overall serious. It is almost a certainty that the Applicant will offend again should his visa be returned and that offending is likely to be wide ranging, including the sort of behaviour the Applicant has demonstrated throughout his criminal history.
Protection of the Australian community (past conduct and future risk)
Primary consideration one requires an assessment of two distinct but correlative factors. Firstly, the nature and seriousness of the non-citizen’s conduct (a matter of past assessment) and secondly, the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Applicant’s history of offending cannot be described of itself as particularly serious. He was a youthful offender when the serious robbery offences were committed and since that time, his offending has not increased in severity. The sentences imposed are a testament to that.
However, the Applicant’s offending has been prodigious and relentless. The Applicant submits that “there is no particular pattern to the criminal offending”. However, underneath the offending lies both dishonesty and conduct dictated by drug abuse. That drug abuse is clearly the motivating factor for the variety of the Applicant’s offending.
The Applicant has been warned, particularly by the mandatory removal of his visa on the last occasion in 2018, together with the implied threat of further mandatory removal should the Applicant subsequently re-offend.
The Applicant offended, in fact, within two months of the Tribunal‘s favourable decision in 2018. It is accepted that his mother, a reformed drug addict who herself has been convicted of credit card fraud, appears to be a steadying influence on her son when he is under her care or supervision. The Applicant does not envisage living permanently with his mother should his visa be returned. However, he has generally a supportive family and that is in favour of assisting him to stop re-offending.
The Tribunal recognises that the Applicant is genuine in his desire to reform which is based, in part, on his desire to stop the use of illicit and pharmaceutical drugs. His intentions are positive and heartfelt. He has undertaken some work courses for Traffic Control and Workplace, Health and Safety. The Tribunal accepts that the Applicant is someone who can be gainfully employed and further, it is accepted that he has had the offer of employment. The Applicant has participated, of his own volition, in six sessions of drug and alcohol counselling whilst in immigration detention. The Tribunal accepts that this is evidence that demonstrates some determination to fulfil his stated purpose to rehabilitate himself.
The Tribunal recognises, however, that at the time of the hearing, the Applicant has had no opportunity to demonstrate any rehabilitation in the community. Whilst in custody and in immigration detention, apart from a lapse in the first month of immigration detention, the Applicant says, and the Tribunal accepts, that he has not taken drugs.
Although the Applicant’s offending, overall, in each individual case, cannot be said to be particularly serious (apart from robbery offences and an offence of stalking), the cumulative effect of the Applicant’s offending, nonetheless, the Tribunal regards as particularly serious.
The Applicant is not someone who has continuously demonstrated violent behaviour. Nonetheless, it is the consistency of the illegal conduct, almost relentlessly carried out even in the face at early stages of bonds being given instead of custodial sentences, and most recently, within two months of him almost losing his visa except for the beneficial approach by this Tribunal.
In the Tribunal’s view, the Applicant’s conduct is virtually unstoppable. Nothing, it seems, has been able to deter him in the past, nor in the Tribunal‘s view, is there anything in the evidence or material which suggests sensibly that he will be stopped in the future. The Tribunal forms this view even taking into account the Applicant’s assertions that his children will operate as some form of impediment to his conduct. That has not happened in the past, nor has any assistance given by his family, including his mother, caused a halt to his criminal conduct.
In summary, in the Tribunal‘s opinion, the Applicant’s offending is relentless and cumulatively serious, even taking into account all those positive features that have been urged upon the Tribunal and some of which have been mentioned in this decision. The Tribunal’s opinion is that the Applicant, despite his promises, protestations and best intentions, will be unable to refrain from committing a range of the types of offences he has committed in the past.
According to psychologist Dr Yoxall, as of 19 February 2018, the Applicant required “comprehensive drug and alcohol rehabilitation best provided as an in-patient”. She opined that:
he also required “counselling and education to develop skills in emotional self-regulation; communication; problem-solving; functioning in interpersonal relationships; anger management; (family violence intervention); parenting; and vocational skills to enhance opportunities for employment. Thus [the Applicant] has high rehabilitation needs and will need a highly structured and supervised rehabilitation and treatment program in the community to ensure the greatest likelihood of relapse prevention.”[1]
[1] G-Documents, G17, p.182.
The view expressed in the Court report for his last appearance in August 2019, stated that the risk of the Applicant re-offending was medium to high. His post release behaviour has amply demonstrated that prediction. It is the Tribunal‘s view, that the Applicant will almost certainly reoffend in the various ways that he has offended in the past, although the Tribunal recognises that violence may not be a feature of such offending.
The second aspect to this consideration is risk assessment which is a future consideration and which, by its very nature, cannot be predicted. However, there are features of this case which suggest strongly that the Applicant will almost, inevitably, reoffend.
It is important to analyse carefully the nature of the risk, as clause 13.1.2(1) requires. In considering the risk to the Australian community, the Tribunal must have regard to, cumulatively, the nature of the harm, should the Applicant engage in further criminal or serious conduct and the likelihood of the Applicant engaging in further criminal or other serious conduct. Any assessment, therefore, must be made as to the nature of the conduct which informs the assessment of the risk or “the nature of the harm”.
In this case, it is true that the Applicant’s conduct does not conform to any particular pattern although there is an underlying pattern of dishonesty. Much of the conduct does not have any immediate physical victim.
That does not, however, mean that the types of offences which the Applicant has committed in the past are victimless. Further, the possession in 2019, by the Applicant, of the (false) medical certificates to facilitate non-compliance with his bail conditions demonstrates behaviour which was meant to defeat proper controls over the Applicant’s intended, further unlawful behaviour.
Significantly, however, the fact that the Applicant’s criminal conduct has been indirectly related to his drug-taking speaks of an unpredictability both of offending and the real likelihood, in the Tribunal‘s view, that his behaviour itself could lead to criminal conduct that is likely to be unpredictable, (although probably not extending to personal violence). The break and enter of the Cronulla Surf Club is an example of the Applicant’s unpredictable behaviour.
Having regard to the pattern of offending in the past and its clearly unpredictable nature, there is an almost certainty that the Applicant will reoffend in the future.
This consideration weighs very strongly against the Applicant.
Best interests of minor children in Australia
Both Applicant and Respondent agree that this consideration weighs in the Applicant’s favour. The Tribunal agrees. There are three relevant children; the Applicant’s daughter, M, the Applicant’s son, R, and a half-brother, JJ. Their ages are five years, three years and 14 years respectively.
M was 11 months old when she was removed, by Family and Community Services, from the custody of the Applicant and his former partner on account of their drug-taking and the potential for the child to receive a lack of proper care. Since that time, the child has been under the guardianship of the ex-partner’s mother and although the Applicant wishes to change those living arrangements so that the child can be with him, it is likely to be a difficult road for him to argue that the child should reside with the Applicant or the child’s mother. This is the Applicant’s realistic opinion, as well as that of the Tribunal.
The Applicant has continued to have contact with all three children even whilst he has been in custody and later, in immigration detention. The Applicant’s evidence showed a real and genuine interest in all three children and a correlative desire that he should be a part of their lives and vice versa.
The male child, R, lives with the Applicant’s ex-partner. Although that relationship has broken down, nonetheless, it seems, on the evidence, to be one which the parties can manage cordial conversations and possibly make arrangements for the child to see the Applicant.
JJ, a 14-year-old male is attached to the Applicant and sees the Applicant as a type of father figure. He has no contact with his natural father.
None of the children have recently had a great deal of physical contact with the Applicant although contact is made via FaceTime. The Tribunal recognises that such contact, should the Applicant be returned to New Zealand is far from ideal, but it provides some level of contact, including visual contact.
The Tribunal accepts the Applicant’s evidence that as he has watched the children grow up, that process has made him even keener for them to be part of his life.
Although there are features of the relationship with the Applicant in respect of each child that are not ideal, nonetheless, the Tribunal is of the view that this consideration, overall, weighs strongly in the Applicant’s favour.
Expectations of the Australian Community
This consideration has been the subject of extensive judicial discussion (see FYBR v Minister for Home Affairs [2019] FCAFC 185). It is not up to the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the “norm” stipulated in Direction 79 at 13.3(1). per Stewart J and Charlesworth J (93); (100 to 104); (68).
The Tribunal takes into account considerations of tolerance by the community, in this case, because of the Applicant’s age, and the type of offending overall. However, persistence is an issue that is also relevant.
In this case, the Tribunal has considered the seriousness of the Applicant’s offending history together with the risk of his reoffending. Those matters, taken into account with all other personal circumstances relating to the Applicant, his age and including those circumstances put forward by him in submissions which are in his favour, do not negate the expectations of the Australian community. In the Tribunal’s opinion, this consideration weighs against the Applicant. There is no reason in the Applicant’s personal circumstances to displace this approach.
Other considerations
International non-refoulement obligations
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.
There is nothing in the material to demonstrate that the Applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal is satisfied that there are no grounds for concluding that there is a real risk that the Applicant will suffer significant harm if removed from Australia.
Strength, nature and duration of ties
The Applicant has very strong ties to Australia having lived here almost all of his life and having arrived here at about 13 months of age.
The Applicant has worked in Australia when his addiction has allowed and he has therefore, contributed to Australian society. All members of his family, except his father, live in Australia and it is practically the only life he has known, although he has, on occasions, visited New Zealand for short periods of time.
The Tribunal recognises that non-revocation would result in continued separation of the Applicant from his family which would cause hardship not only to the Applicant himself but also to his family members. A significant factor is that non-revocation would mean separation from minor children whose issues have been dealt with above. This consideration weighs in the Applicant’s favour.
Impact on Australian business interests
There is no evidence currently available to suggest that the Applicant is involved in the delivery of a major project or of an important service in Australia. Accordingly, this consideration is not relevant to the Applicant's circumstances.
Impact on victims
There is nothing in the material which suggests that this consideration is relevant to the Applicant’s case.
Extent of impediments if removed
The Applicant submits that there are matters relevant to this consideration such as:
“an absolute lack of social, practical and financial support in New Zealand. He will face a significant degree of practical, financial and emotional hardship upon return to New Zealand, due to his separation from family and absolute lack of ties to that country.”[2]
[2] Applicant’s Statement of Facts, Issues and Contentions, p.10.
The Applicant’s father now resides New Zealand and the Applicant has an appropriate relationship with him. It is undoubted that there will be, should the Applicant be returned to New Zealand, a period of social and emotional adjustment attended by difficulties in establishing himself in a practical sense, in trying to obtain work and accommodation. The Tribunal considers that those difficulties, however, are not insurmountable and the Applicant does have some sense of life as it would be lived by him in New Zealand.
Nonetheless, this consideration weighs in the Applicant’s favour.
CONCLUSION
Although there are a number of factors which in the various considerations in this case favour revocation of the cancellation, that the Tribunal considers, in the event, Considerations 1 and 3 most powerfully outweigh all other considerations and factors, leading to the conclusion that there is no other reason to overturn the cancellation.
The decision under review is affirmed.

I certify that the preceding 84 (eighty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

............................[sgd]............................................
Associate
Dated: 14 July 2020

Date(s) of hearing: 6 July 2020

Solicitors for the Applicant: Ms J Samuta

Solicitors for the Respondent: Ms C Hillary

[2020] AATA 2216

14 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Date(s) of hearing:	6 July 2020
Solicitors for the Applicant:	Ms J Samuta
Solicitors for the Respondent:	Ms C Hillary