Shane Gibbs and Minister for Immigration and Citizenship

[2013] AATA 313

[2013] AATA 313

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/0957
Re	Shane Gibbs
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	Deputy President S D Hotop
Date	17 May 2013
Place	Perth

The decision under review is affirmed.

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

S D Hotop, Deputy President

CATCHWORDS

IMMIGRATION AND CITIZENSHIP – visa – cancellation of visa – applicant a New Zealand citizen – applicant arrived in Australia in 1996 aged 12 years – applicant committed offences from 1996 to 2011 – applicant sentenced to 6 years' imprisonment for armed robbery offences in 2008 – applicant does not pass character test – discretion to cancel visa – primary consideration of protection of Australian community outweighs other primary considerations and other considerations – significant risk of future serious harm to Australian community by applicant unacceptable – preferable decision is that visa be cancelled – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 501(2)

Direction no 55 – Visa refusal and cancellation under s 501

REASONS FOR DECISION

Deputy President S D Hotop

17 May 2013

Introduction

1. Shane Gibbs (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (“the respondent”), dated 17 October 2012, cancelling his Class TY, Subclass 444 Special Category (Temporary) visa (“the visa”). The delegate’s decision was made under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).

2. The applicant was formally notified of the delegate’s decision, in accordance with s 501G(1) of the Act, on 26 February 2013.

   The Factual Background

3. The applicant was born in January 1983 in New Zealand and is a citizen of New Zealand.

4. The applicant first arrived in Australia on 15 January 1996, shortly before his 13^th birthday, and, with the exception of the period from 22 November 1996 to 2 May 1997 when he was outside Australia, he has resided in Australia since 15 January 1996.

5. On 4 November 2008 the applicant, following his plea of guilty and conviction of three offences of armed robbery, was sentenced by Johnson J in the Supreme Court of Western Australia to a total term of 6 years’ imprisonment made up as follows:

   ·3 years’ imprisonment for each of 2 offences of armed robbery committed on 2 September 2008, to be served concurrently;

   ·3 years’ imprisonment for an offence of armed robbery committed on 3 September 2008, to be served cumulatively upon the abovementioned sentences.

   Johnson J ordered that he be eligible for parole.

6. The applicant was subsequently convicted of escaping from lawful custody and stealing a motor vehicle on 29 December 2010 and, on 8 February 2011, he was sentenced to 6 months’ imprisonment for each of those offences (to be served concurrently).

7. On 17 October 2012 a delegate of the respondent cancelled the visa under s 501(2) of the Act.

   The Relevant Legislation

8. Section 501(2) of the Act provides:

   “ The Minister may cancel a visa that has been granted to a person if:

   (a)the Minister reasonably suspects that the person does not pass the character test; and

   (b)the person does not satisfy the Minister that the person passes the character test.”

   The “character test” is defined in s 501(6) of the Act which specifies various alternative circumstances in which a person does not pass the “character test” within the meaning of that section. In the present case, the relevant circumstance is that specified in para (a) of s 501(6), namely, “the person has a substantial criminal record (as defined by subsection (7))”. Section 501(7) specifies five alternative circumstances in which, for the purposes of the “character test”, a person has a “substantial criminal record”. In the present case, a relevant circumstance is that specified in para (c) of s 501(7), namely, “the person has been sentenced to a term of imprisonment of 12 months or more”.

   The Ministerial Direction

9. In reviewing the delegate’s decision in this matter pursuant to s 500 of the Act, the Tribunal is required, by s 499(2A) of the Act, to comply with a direction given by the respondent under s 499(1) of the Act. The relevant direction, as presently in force, namely, Direction no 55 – Visa refusal and cancellation under s 501 (“the Direction”), was given by the respondent on 28 July 2012 and commenced on 1 September 2012.

10. Section 1 of the Direction includes (in para 6) a Preamble which contains (inter alia) “general guidance” for decision-makers acting under s 501 of the Act in the following terms:

    “ 6.2     General Guidance

    (1)   The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.  The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

    …

    (3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizens [sic] visa under section 501. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B of this Direction.”

    The principles referred to in para 6.2 are set out in para 6.3 as follows:

    “ 6.3     Principles

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.  Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)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.

    (4)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time.  However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (6)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.”

11. Section 2 of the Direction, which is headed “Exercising the Discretion”, commences as follows:

    “ 7       How to exercise the discretion

    (1)   Informed by the principles in paragraph 6.3 above, a decision-maker:

    (a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; and

    (b)is required to determine whether the risk of future harm by a non-citizen is unacceptable.  This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.

    8Taking the relevant considerations into account

    (1)  Decision-makers must take into account the primary and other considerations relevant to the individual case, noting that there are differing considerations for visa holders and visa applicants as articulated in Parts A and B.  Separating the considerations for visa holders and visa applicants recognises that persons holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

    (2)  In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (3)  Both primary and other considerations may weigh in favour of, or against, refusal or cancellation of the visa.

    (4)  Primary considerations should generally be given greater weight than the other considerations.

    (5)  One or more primary considerations may outweigh other primary considerations.”

    Part A (comprising paras 9 and 10) then refers to the “primary considerations” and “other considerations” which, where relevant, must be taken into account by a decision-maker in deciding whether to cancel a visa under s 501(2) of the Act. Those considerations will be relevantly referred to in detail later in these reasons.

    The Evidence

12. The evidence before the Tribunal comprised:

    ·the “G Documents” (G1–G29, pp 1–168) lodged by the respondent on 21 March 2013 (Exhibit R1);

    ·Respondent’s Supplementary Documents (S1–S30, pp 1–117) filed on 16 April 2013 (Exhibit R2);

    ·the applicant’s statement, filed on 2 April 2013 (Exhibit A1); and

    ·the oral evidence of the applicant.

    The Applicant’s Criminal Record

13. The applicant’s recorded criminal history in Australia is as follows:

Court	Offence	Court Date		Result
Perth Children’s Court	Attempted Stealing (6 charges) Stealing (6 charges)	15/10/1996		Dismissed under s 67 Youth Offenders Act
Perth Children’s Court	Stealing (4 charges)	12/11/1996		Dismissed under s 67 Youth Offenders Act 1 day spent in custody
Perth Children’s Court	Assault to prevent arrest Stealing – motor vehicle Stealing	27/06/1997		3 months youth community based order (YCBO) (each charge)
Perth Children’s Court	Aggravated burglary and commit offence (habitat)	17/07/1997		2 months detention order
Perth Children’s Court	Firearm possessed – no licence Stealing – motor vehicle	28/07/1997		1 month detention order (each charge)
Perth Children’s Court	Stealing motor vehicle (5 charges) Unlicensed driver (5 charges)	22/09/1997		2 months detention order (each charge) 3 months licence disqualified
Perth Children’s Court	Reckless driving Stealing Stealing – motor vehicle Stealing motor vehicle reckless/dangerous Unlicensed driver (2 charges)	30/01/1998		3 months YCBO; 6 months licence disqualified 3 months YCBO (each charge of stealing) 9 months licence disqualified (cumulative) 3 months YCBO (each charge)
Perth Children’s Court	Aggravated burglary with intent (place) Stealing – motor vehicle (6 charges)	18/02/1998		6 months detention order (all charges)
Perth Children’s Court	Stealing –  motor vehicle	10/03/1999		4 months YCBO 20 hours unpaid community work
Perth Children’s Court	Threatening words Unlawfully remain on premises	27/05/1999		15 months YBCO (each charge)
Court	Offence	Court Date		Result
Perth Children’s Court	Burglary and commit offence (place) Disorderly conduct Attempt steal motor vehicle	24/08/1999		3 months detention (each charge) 3 months detention
Perth Children’s Court	Stealing	16/11/1999		3 months YCBO 20 hours unpaid community work
Perth Children’s Court	Common assault		30/03/2000	4 months YCBO
Rockingham Children’s Court	Burglary and commit offence (place) – aggravated Common assault Damage Stealing Stealing – motor vehicle (3 charges)		14/07/2000	3 months detention (each charge) (concurrent) 3 months detention (all charges) (concurrent)
Darwin Juvenile Court	Enter building at night with intent Stealing Unlawfully damage property Damage property Enter building at night with intent Stealing		12/12/2000	18 months good behaviour  bond ($1000) (all charges) Restitution $883 18 months good behaviour bond ($1000) (all charges)
Darwin Court of Summary Jurisdiction	Damage property		19/04/2002	Community service order 80 hours unpaid community work Restitution $5,482.66
Darwin Court of Summary Jurisdiction	Breach of bail granted		28/08/2002	Bail granted estreated Fined $750
Perth Court of Petty Sessions	Stealing (2 charges)		04/12/2002	Fined $150 (each charge

Court	Offence	Court Date	Result
Perth District Court	Burglary and commit offence (place) –  aggravated	08/04/2003	18 months intensive supervision order 80 hours unpaid community service work
Joondalup Court of Petty Sessions	Breach of bail granted (2 charges) Damage	25/08/2003	Fined $100 (each charge) Fined $100
Darwin Court of Summary Jurisdiction	Breach of bail granted	10/05/2004	Bail granted estreated. Fined $500
Darwin Court of Summary Jurisdiction	Breach of community service order Breach of bail granted	20/05/2004	Warrant of apprehension to issue Bail granted estreated Fined $1,500
Darwin Court of Summary Jurisdiction	Breach of bail granted	24/05/2004	Bail granted estreated Fined $1,500
Darwin Court of Summary Jurisdiction	Enter and damage business premises or property within Fail to cease to loiter	25/05/2004	Warrant of apprehension to issue (each charge)
Perth District Court	Breach of intensive supervision order (08/04/2003) Stealing Breach of bail granted	05/11/2004	18 months intensive supervision order Fined $400 Fined $200
Rockingham Court of Petty Sessions	Drugs prohibited use	11/03/2005	Fined $200
Rockingham Court of Petty Sessions	Breach of bail granted Burglary and commit offence (place) Receiving	21/03/2005	1 month imprisonment 8 months imprisonment 3 months imprisonment (concurrent)
Perth Magistrates Court	Unlawful possession	18/07/2005	Fined $100
Court	Offence	Court Date	Result
Perth District Court	Breach of intensive supervision order (05/11/2004)	20/07/2005	9 months intensive supervision order
Perth District Court	Breach of intensive supervision order (20/07/2005)	20/12/2005	9 months intensive supervision order
Bunbury Magistrates Court	Aggravated burglary and commit offence (place) Reckless driving Unlicensed driver Exceed 0.2% Fail to stop when called upon	07/04/2006	18 months imprisonment (concurrent) 5 months imprisonment 12 months licence disqualified 3 months imprisonment 3 months licence disqualified Fined $100 3 months licence disqualified Fined $200
Bunbury District Court	Aggravated burglary and commit offence (place) Burglary and commit offence (place) Breach of intensive supervision order (20/12/2005)	31/07/2006	8 months imprisonment 8 months imprisonment (cumulative) 4 months imprisonment
Bunbury Magistrates Court	Burglary with intent (place)	04/08/2006	8 months imprisonment
Rockingham Magistrates Court	Unlicensed driver	31/07/2007	Fined $500 4 months licence disqualified
Perth District Court	Attempted armed robbery Assault occasioning actual bodily harm	25/01/2008	12 months imprisonment (each charge
Perth Magistrates Court	Being armed in way that may cause fear Stealing	25/01/2008	9 months imprisonment Fined $200

Court	Offence	Court Date	Result
Perth Supreme Court	Armed robbery Armed robbery Armed robbery	04/11/2008	3 years imprisonment 3 years imprisonment (concurrent) 3 years imprisonment (cumulative)
Perth Magistrates Court	Escaping from lawful custody Steal motor vehicle	08/02/2011	6 months imprisonment (cumulative) 6 months imprisonment (concurrent)
Mandurah Magistrates Court	Reckless driving Fail to stop when called upon Unlicensed driver	31/05/2011	Fined $1,250 12 months licence disqualified Fined $500 3 months licence disqualified Fined $250 3 months licence disqualified

(Exhibit R1, G8)

The Sentencing Remarks of Johnson J

1. When sentencing the applicant on 4 November 2008 for the offences referred to in paragraph 5 above, Johnson J made the following remarks:

   “ JOHNSON J:  Yes, thank you.  Mr Gibbs, remain seated please because I do have some matters to speak to you about before I pass sentence on you.  You have been convicted on your plea of guilty of three armed robberies, which I see as being very serious offences of their type.  Each of them were committed on service stations and the weapon you used on each occasion was a knife which you initially concealed.  Because the facts have been read in detail recently, I don’t propose to repeat all of the facts, I will just identify some of the factors which I say make them serious offences of their type.

   The first observation I would make is that they were each committed in circumstances where there were lone female attendants, and the fear that would result from being confronted by a male wielding a knife is something that you might have no comprehension of but I certainly do.  In particular, the victim of your first offence was only 20 years old and in a moment I will refer you to certain aspects of her victim impact statement which indicate the very terrible suffering you have imposed on her because of your offending.

   The first offence occurred in the early hours of the morning when of course people in the situation of the victim are quite vulnerable because there are not many people around at that time, and no doubt that was one of the factors that was taken into account by you.  You formed an intention to commit the offence to obtain money to purchase drugs and to pay off a drug debt, and in that regard the entire reason behind this offending was something that you shouldn’t have been doing in the first place, not only because it’s illegal but because of all the promises that were made on the previous occasion that you were dealt with.

   I say that promises to yourself, not to mention your son, that you would review your conduct.  You produced a knife when you made your demand for cash from the register.  In the first offence you apologised for your actions, but as I have said, that’s of no significance to the people who were there at the time.  It may make you feel better but I’m sure it doesn’t make them feel better.  You said you weren’t going to hurt her but it’s quite clear that she had no such belief no matter what you said, and someone who is in there robbing you wielding a knife is not somebody that you are inclined to believe in the first place.

   Fearing for her safety, she removed money from the cash register and you also helped yourself to cigarettes and $15 that was next to the till, to a total of $599.  In addition you demanded money from the safe but she didn’t have access so that couldn’t happen.  You then told her that she would have to wait in the toilet block until you left and when you took her there she locked herself in and you did leave.

   The second offence on another service station was committed for the same purpose.  There once you gained entry you approached the lone female attendant and demanded cash.  You told her you were a drug addict.  I’m not sure of the purpose for telling her that but no doubt that made her feel that you were desperate enough to do anything.  You threatened to jump over the counter and produced a knife, again that you had concealed.  Fearing for her safety she removed the $20 notes from the register but you weren’t satisfied with that.  You took that money and demanded more but you also used your jumper sleeve in an attempt to remove any forensic evidence.  So even if you were under the influence of drugs you had the wherewithal to do your best to protect your own interests.

   You demanded more money and you received a total of $400 and indeed you continued to demand money until she showed you the till, the cash drawer, to show that there wasn’t any.  You then demanded cash from the safe again but she didn’t have the key either and presumably that seems to be a very sensible practice in the circumstances.  You demanded two packets of cigarettes and you left with the money and the cigarettes.  That second offence was committed at 10.50 pm, again late at night when people are alone and there are unlikely to be people around.

   The third offence was committed again in the early hours of the morning and with the same intention.  You went to the fridge, selected an item no doubt to show that there was some legitimate purpose to you being at the console.  The console operator then returned there to serve you.  Again you threatened her, demanded cash.  You said that you were a drug addict and that you owed money for drugs.  You demanded the money and she, because of [sic] part of her fear for her own safety, opened the cash register and removed $332.20 in cash and gave it to you.  You demanded the $50 notes but again she had to lift up the till drawer to satisfy you that there weren’t any $50.

   You demanded the coins and you also took her personal mobile phone, presumably because it had some value to you – it certainly would have been of value to her – and that was valued at $650.  She placed the coins in the bag and handed them to you.  Again you walked her to the coolroom, threatening to lock her in and you even repeated that threat.  Then you left the premises.

   On the following day, which I presume was 4 September, in the afternoon you were arrested and participated in a video record of interview making full admissions to the three offences.  You advised police that you had burned some of the clothing you were wearing in relation to, I think, two of the offences, and you were remanded in custody.  It is a positive factor on your part that you did admit your involvement in the offences as it is the case that some people do not.  In fact, your willingness to deal with your conduct is also evidenced by the plea of guilty that you have entered today and there will be a reduction in your term as a result of that.

   I mentioned to you the victim impact statement.  I think your counsel mentioned that you haven’t’ actually had access to this statement.  I don’t know whether you are a person who cares about what happened to this woman but I would like you at least to know the impact of your thoughtless and selfish conduct.  She said that when it  happened she didn’t really think she had been affected that badly but she said that this particular incident as it happened basically, in her words, ‘shoved her over the edge.’  She couldn’t go out of her house on her own and she hasn’t been able to go back to work.  She has had to go to counselling, referred by her doctor.

   She was five and a half months pregnant at the time of your offence and no doubt that’s had some impact as well on her reaction.  She said:

   He walked behind me and told me to lock myself in the toilet.  I didn’t know whether I was going to be locked in there and lose my baby or if I was going to get raped . I didn’t know what was going to happen.

   That is the problem when you deal with people in such ways.  They can’t know what is in your mind and in the circumstances where you are prepared to wield a knife and threaten them no doubt they think the worst of you and justly so.

   She became suicidal.  Her partner has not been able to go out to work because he’s had to care for her.  She has to go to the doctor on a regular basis and is still undergoing counselling.  She has trouble sleeping and in fact is having very little sleep.  Really her life has become a nightmare and indeed she is experiencing nightmares.  She can’t go back to her place of work, she doesn’t like going into service stations, she won’t go to public toilets.  You’ve had an enormous impact on her life, all of it bad, and it seems to me that at the time and probably thereafter you’ve given insufficient thought to the impact this sort of offence can have on people.

   We are not all having strong constitutions.  Some people react more badly than others but this young woman, and I think you can expect a young person to have a stronger reaction, has really suffered terribly.

   You were at the time of these offences on parole, it has been mentioned.  You were released on parole on 25 July  of 2008 and these offenses occurred in September.  So it was a very short period of time before you reoffended and I think that you were returned to custody on the fourth and that you are now serving the time that you owe for the previous offence and your earliest release date is 23 May of next year.

   You have an extensive Children’s Court criminal record and as an adult you have convictions for stealing, for burglaries, damage, three breaches of bail, use of prohibited drugs, unlawful possession, traffic offences, aggravated burglaries for which you have previously been in prison.  You have got convictions for being armed to cause fear, assault occasioning bodily harm and of course the attempted armed robbery for which you were on parole at the time of this offence.

   You in the past have been in breach of three intensive supervision orders and all that – and you are only 26 years old, as I understand it.  You are still a young man, which is something that is in your favour but it’s unfortunate that someone of your age has managed to accumulate such a record of convictions.  I have been provided with a pre-sentence report to provide me with more information about you and your offending.

   With respect to the offences, you advise that a month prior to them you had been informed that your parole had been suspended for failing to notify your supervising officer of a change of address and you felt that the suspension was trivial.  Well, you may have thought it was trivial but you were given the benefit of parole and an obligation on you to advise of where you were living is highly onerous and although you may have thought it was trivial, it was an indication as far as I am concerned and no doubt to them that you simply weren’t taking the situation seriously enough.

   It has been said on your behalf that you weren’t provided with the proper facilities and proper assistance was not made available to you once you were released.  I have no doubt that it is the case that there are insufficient resources to provide you with all the support and assistance that you would like and others in the system would like you to have but the fact is that many things in life don’t go our way and even though you may have thought that returning to prison meant that you might as well not bother, returning to prison for an awful lot longer is surely even less palatable.

   Allegedly as a result of your frustration, you relapsed to illicit substance abuse and were using amphetamines every two days for the month before the offences.  As a result, you accrued and [sic] $8000 drug debt and were being pressured to pay.  This all happened in a very short period time so your reaction to the lack of facilities provided to you was over a very short period of time.  Although by the same token, I suspect that you may have felt that the suspension within that short time was somewhat unfair.  It does not, in my view, however, justify your subsequent conduct.

   I note that in addition to failing to advise of your whereabouts, according to the report – although it’s in conflict with the submission of your counsel – that you failed to attend urinalysis on three occasions and, however, you failed to take responsibility for your noncompliance according to the author of the report, claiming that you had been abstaining from illicit substances and felt that you were complying with the order.  The report also refers to a recent psychological report dated 16 January 2008 which was prepared for the District Court appearance.

   Again, that’s the offence for which you were on parole at the time of these offences.  That suggested that you had significant psychopathology and that it was indicated through psychometric testing, which highlighted problems in relation to your mood, ability to interact in a fulfilling and harmonious manner and your ability to responsibly manage your behaviour.  The report also indicated that you had a potential for aggressive and unpredictable behaviour, based on your offending history, polysubstance misuse, impulsive tendencies and manner in which you seem able to detach yourself from the realities of your repeated victimisation of others and their property.

   The conclusion of the pre-sentence report was that you demonstrated little insight into your actions, although you expressed regret and claimed that you wouldn’t normally act in such a way.  There has been an escalation in your offending but you do normally act in a way that involves breaking the law and behaving with very limited concern about the interests or the property of other people.  You reiterated that you felt you had no other option at the time.  I think that’s absolute rubbish.  You had plenty of options.  The one that you elected to avail yourself of was just the worst one you could have.

   The level of justification is said to pose concern in relation to how you will handle future stresses and I think that’s right.  I think the greatest concern I have from the circumstances here is that when you are released from prison, if things don’t go completely the way you wish you are unable to deal with the situation.  It also says that you externalise responsibility for your substance use and subsequent drug debt on your parole suspension, suggesting limited insight into your offending behaviour.

   You appeared to lack consequential thinking and problem solving skills at the time of the commission of the offences.  You articulated regret for your actions and appeared to understand the seriousness of your situation and that, as I said, is in your favour.

   It is said that your court history depicts a recent escalation in offending with the recent attempted armed robbery conviction and now, of course, these three convictions for armed robbery.  Your pattern of offending and comments made during the interview are said to suggest that you have an attitude that offending is an acceptable way to improve your financial situation, and there is also an observation that previous court-imposed sanctions have not acted as a deterrent and they certainly haven’t.

   A community based sanction, not surprisingly, is not supported by the community corrections officer.  The report indicates that you have produced an unsatisfactory response to supervision to date, failing to complete any period of community based supervision.  Whilst the majority of the previous orders have been breached for reoffending, departmental records are said to suggest that your compliance with the requirements of the orders were marginal at best in any event.  However, I do note that parole eligibility is supported by the author of the pre-sentence report.

   You are now to be sentenced for three offences of armed robbery.  They are each, as I said, serious offences of their type involving the use of a knife and committed upon service stations which are vulnerable targets in that in the community’s interests they must stay open at the night-time and are often kept open by a sole console operator, often female, and in this case at least one of them was quite young, being only 20 years old, and in my experience they often are young, the lone console operators who are working at night-time.

   There is also, I think, the aggravating factor of moving them away from where they were at the console to the toilet area and either telling them to lock themselves in or them doing so.  Clearly, in at least one case that was seen as being a particularly aggravating factor.

   There is little mitigation, although there certainly is some.  There is your plea of guilty to each of the offences and that acceptance of responsibility that goes with that.  There is the case that there is a certain level of remorse expressed by you, and there is also the factor that you are only, despite your record, 26 years old and there is some hope that maturity will have a positive impact on you and on your behaviour in particular.

   There has been a greater escalation in your offences than on the previous occasions and the content of the pre-sentence report shows, as I have indicated, that you have little insight into your actions and your level of self-justification is definitely concerning, in my view.

   You were on parole at the time of these offences as you were, as I understand, on the previous occasion having, in my view, being [sic] dealt with quite leniently and in a quite insightful way by the judge on the previous occasion.  He attempted to in some way make a connection with you in relation to what you’re doing with your life and the impact of that on your son.

   Unfortunately, that hasn’t had the outcome that was desired either by the judge or perhaps even by you, and you now are here before me to be sentenced to a further term of imprisonment.  It is a concern to me, as the report indicates, that you see offending as a means of obtaining money to support your drug use and you do have an ability to keep justifying what you do, that it’s someone else’s  problem and it’s not.  It’s your problem and you have to deal with it.

   In my view, a penalty that provides some punishment for your conduct and is personally and generally deterrent is called for in this case.  Offences of this type are prevalent.  Service stations are common targets.  You’ve committed three such offences and you have previously committed an offence of an attempted armed robbery and you have a significant record.

   The issue of parole, I think, is a difficult one.  It’s said that you are likely to be deported on release but, having considered that, I believe that it would be best if I excluded that possibility from my consideration as to whether parole should be ordered.  It was said on a previous occasion, but I note on your release you weren’t immediately deported although it was a pretty short time before you reoffended, but I will put that to one side.

   I think it is the case that under section 89 of the Act, subsection (4), that you fit within three of the four categories or factors that would allow me to refuse you a parole order and in the circumstances of your offending whilst on parole, that is certainly something that’s open to me. The reports support parole but, in those circumstances, they are usually thinking more in terms of your needs on release rather than the legal implication of whether parole is appropriate.

   As I have determined, the decisive factor in that regard is really your age.  Although you are getting to the stage where people will no longer suggest that you’re young and should be given the benefits of the very young, I think there is still some hope that you will attain greater maturity, great insight and possibly do something about your offending.

   Would you stand up, please?  In relation to the offences before me, I think there is a basis upon which to differentiate marginally between the first and last together and the second, the second being one where you did not force the person into the toilet block but, in reality, I think they are all offences of the same type and very serious ones, so the sentences that I impose would be the same for each of them and I also believe that they are three separate and distinct offences notwithstanding they are committed over a short period of time and in the usual course of events the sentences should be served cumulatively.  However, in view of the fact that you are currently serving a term that will not expire until May of next year and the totality principle, I propose to make only two of them cumulative.

   In relation to the offences, to each offence, I think the appropriate term of imprisonment is one of six years.  I propose from that to deduct the one-third as I am required by law and to deduct a further 25 per cent for your plea of guilty.  That brings a term of three years in relation to the offences, so that the penalty that I impose in relation to count 1 on the indictment will be a term of three years’ imprisonment, in relation to count 2 a further term of three years’ imprisonment but concurrent with the sentence on count 1.  In relation to count 3 the term of imprisonment will be three years’ imprisonment but cumulative on count 1.  That brings a total term of imprisonment to six years but I will order that you be eligible for parole. …”  (Exhibit R1, G15, pp 104–111)

   The Applicant’s evidence

1. The applicant tendered in evidence his statement (filed on 2 April 2013) as follows:

   “ Firstly I would like to say I have no excuss or defence for my prior criminal charges, how ever in the past I have only been in prison for resonibly short periods.  I have now been in jail for nearly 5 yrs and by the time I’m due for release it will be 6½ long years.  Since being in jail I have completed a 3 month drug course and the intirity of my sentence I have not had a positive drug test which is major as my number 1 problem in the past was my drug abuse problem.  For the first time I can say that I’m 100% drug free and have found a new personal confidence.  If given a chance I plan to move to Adelaide with my mum and dad for a fresh beginning, which is new and exciting.  As I have said before my whole family is here in Australia.  I have began to build relationship with my family and hope to be around for family events and occasions.  Regarding my son …  I have not had any part of his up bringing since being in jail since 2008, how ever I know once I’m out I can prove to his mother … I’m now responsible and ready to continue on as his dad as I was when he was born and up untill he was a toddler.  Apart from my son one of my biggest deterrents is my mother.  I have put her through hell and she has continued to support me.  I would never ever be able to forgive my self is something happend to any of my family members and I was not able to be here!  Summing up I wish to be granted a last chance, for the interest of me my son and family.”  [sic]  (Exhibit A1)

2. In cross-examination the applicant:

   ·did not dispute the circumstances of any of his convictions since 2005 in respect of which custodial sentences were imposed;

   ·acknowledged that, in letters which he wrote to the Department of Immigration and Citizenship (“Department”) on 1 August 2006 (Exhibit R1, G22) and 23 March 2007 (exhibit R1, G23), he stated that he understood that further offending by him would place him in jeopardy of being deported to New Zealand;

   ·acknowledged that he had receive two formal warnings from the Department – one dated 19 July 2007 (Exhibit R1, G12), the other dated 7 May 2008 (Exhibit R1, G13) – about the risk of visa cancellation if he were to re-offend.

3. As  regards rehabilitation, the applicant said that he had completed the “Moving on from Dependency” program at Albany Prison on 4 April 2007 and, more recently, the “Pathways” (high intensity) program at Bunbury Prison on 4 April 2012.  He acknowledged, however, that, on 26 April 2012, he declined to participate in the “Violent Intensive” (high intensity) program because he did not believe that he needed that program and because he did not expect to be granted parole in any event (see Exhibit R2, S20).  He added that he did not believe that he needed that program because he is not a violent person, but he now acknowledges that he does need to undertake that program because he understands that there can be threatened violence as well as actual violence and he has committed offences involving threatened violence.

4. The applicant reiterated that he has not tested positive for drugs during his present term of incarceration (from September 2008), notwithstanding the availability of drugs in prison, and that he remains drug-free.

5. As regards his 10-year-old son, the applicant confirmed that he has played no part in his upbringing since he was incarcerated in 2008 but that he was involved in his upbringing up until he was 4 – 5 years old.  He said that, although his son’s mother has not brought his son to visit him in prison, his own mother did so on one occasion in 2010 without the knowledge of the child’s mother.  He said that that visit was “good”.  He also confirmed that his son lives with his (son’s) mother and her partner and their two children.

6. The applicant said that, since he has been in Australia, he has had two full-time jobs – he worked for Woolworths in Darwin for 6–7 months in 2001–2002 and as a factory hand in Western Australia for 5–6 months in late 2007.

7. Finally, the applicant confirmed that all of his immediate family members – namely, his mother, stepfather, four sisters and one brother – live in Australia.  He said that his biological father is deceased.  He said that his only relative that he is aware of in New Zealand is an aunt from his father’s side of the family but he does not know where she lives.

   Other Evidence

8. Further material which is in evidence will be referred to later in these reasons.

   Analysis

   Application of the “character test”

9. By reason of the fact that the applicant was, on 4 November 2008, sentenced to a total term of 6 years’ imprisonment, the Tribunal finds that the applicant has a “substantial criminal record”, as defined in s 501(7) of the Act, and that, by reason of s 501(6)(a) of the Act, he does not pass the “character test”.

10. It follows from that finding that the discretionary power to cancel the visa, pursuant to s 501(2) of the Act, is enlivened in this case.

    Should the discretionary power to cancel the visa be exercised in this case?

    The primary considerations

11. Paragraph 9 of the Direction states as follows:

    “ 9   Primary considerations – visa holders

    (1)   In deciding whether to cancel a person’s visa, the following are primary considerations:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)The strength, duration and nature of the person’s ties to Australia;

    (c)The best interests of minor children in Australia;

    (d)Whether Australia has international non-refoulement obligations to the person.”

    Protection of the Australian community from criminal or other serious conduct

12. Paragraph 9.1 of the Direction states as follows:

    “ 9.1     Protection of the Australian community

    (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.

    (2)   Decision-makers should also give consideration to:

    (a)  The nature and seriousness of the person’s conduct to date; and

    (b)The risk to the Australian community should the person commit further offences or engage in other serious conduct.

    9.1.1  The nature and seriousness of the conduct

    (1)In considering the nature and seriousness of the person’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

    (a)   The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

    (b)   The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

    (c) Where the person is in Australia, that a crime committed while the person was in immigration detention; during an escape from immigration detention; or after the person escaped from immigration detention, but before the person was taken into immigration detention again is serious, as is an offence against section 197A of the Act;

    (d)   The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s 501(6)(b) or (d), or is not of good character under s 501(6)(c), is considered to be serious;

    (e)The sentence imposed by the courts for a crime or crimes;

    (f)   The frequency of the person’s offending and whether there is any trend of increasing seriousness;

    (g)The cumulative effect of repeated offending;

    (h)   Whether the person has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

    (i)    Whether the person 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 person’s migration status (noting that the absence of a warning should not be considered to be in the person’s favour);

    (j)   Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

    9.1.2The risk to the Australian community should the person commit further offences or engage in other serious conduct

    (1)In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.  Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.  In making this assessment, decision-makers must have regard to, cumulatively:

    (a)   The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and

    (b)   The likelihood of the person engaging in further criminal or other serious conduct, taking into account:

    (i)information and evidence on the risk of the person re-offending; and

    (ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).”

13. As regards the nature and seriousness of the applicant’s criminal offending to date, the Tribunal comments on the relevant factors listed in para 9.1.1(1) of the Direction as follows:

    ·the three offences of armed robbery for which the applicant was sentenced on 4 November 2008 and the offence of attempted armed robbery for which he was sentenced on 25 January 2008, each of which involved threatened violence of a serious nature, and the offence of assault occasioning actual bodily harm for which he was sentenced on 25 January 2008, which involved actual violence, are viewed very seriously (subpara (a) of para 9.1.1(1));

    ·in the period 2005–2008 the applicant was convicted of 5 offences for which he was sentenced to terms of imprisonment ranging from 12 months to 6 years, thereby reflecting the seriousness with which those offences were regarded by the sentencing judges concerned (subpara (e) of para 9.1.1(1));

    ·the applicant’s recorded criminal history (as set out in paragraph 13 above) reflects a pattern of consistent and frequent offending in the period from 1996 to 2011 and a trend of increasing seriousness, especially in the period 2007–2008 when the abovementioned offences of armed robbery and attempted armed robbery were committed (subpara (f) of para 9.1.1(1));

    ·having regard to the applicant’s extensive criminal history involving repeated offending over a period of some 15 years, the cumulative effect of his offending has been to inflict serious harm on the Australian community (subpara (g) of para 9.1.1(1));

    ·the applicant has received two formal warnings from the Department regarding the consequences of further offending on his immigration status, namely in July 2007 and in May 2008, and he nevertheless committed serious offences following his receipt of each warning (subpara (i) of para 9.1.1(1)).

14. Having regard to the considerations referred to in paragraph 27 above, the applicant’s criminal offending to date is considered to be very serious.

15. The G Documents (Exhibit R1) and the Respondent’s Supplementary Documents (Exhibit R2) contain certain authoritative, independent documents which include objective references to matters which are relevant to an assessment of the risk or likelihood of the applicant’s re-offending, including the following:

    ·Psychological Report for Court by Ms C Lynn, Forensic Psychologist, dated 16 January 2008, for the purpose of the applicant’s sentencing in the District Court on 25 January 2008 for the offences of attempted armed robbery and assault occasioning bodily harm committed by him on 28 August 2007, concludes as follows:

    “… the assessment revealed that Mr Gibbs’ potential for such aggressive and unpredictable behaviour is significant.  This was apparent as based upon his extensive offence history (including for violence), his significant poly substance misuse, impulsive tendencies and the manner in which he seems able to detach himself from the realities of his repeated victimization of others and their property.  His current offences appear to indicate an escalation of this potential to disregard the rights and safety of himself and others.  Significant psychopathology was indicated through psychometric testing which highlighted problems in relation to his mood, ability to interact in a fulfilling and harmonious manner and his ability to responsibly manage his behaviour.  Treatment needs are significant in order to address his entrenched antisocial behaviours and associated attitudes, relationships and lifestyle.  A lack of insight into the severity and nature of his problems may hinder his readiness for making and maintaining significant change.” (Exhibit R2, S6, p 20);

    ·McCann DCJ, in the course of his remarks when sentencing the applicant for the abovementioned offences on 25 January 2008, said:

    “You are, quite frankly, a recidivist offender and you at [sic] a high risk of some form of criminal offending in the future if you abuse substances of any kind.  This is because you have little or no self-control or coping mechanisms and you simply resort to crime too readily.” (Exhibit R1, G16, p 114);

    ·Extended Pre Sentence Report by Ms J Hardiman, Community Corrections Officer, Department of Corrective Services, dated 24 October 2008, for the purpose of the applicant’s sentencing in the Supreme Court on 4 November 2008 for three offences of armed robbery committed by him on 2–3 September 2008, concludes as follows:

    “Mr Gibbs appears before the Court in relation to sentencing of [sic] the offences Armed Robbery x 3.  He externalised responsibility for his substance use and subsequent drug debt on his Parole suspension, suggesting limited insight into his offending behaviour.  He appeared to lack consequential thinking and problem solving skills at the time of commission of the offences.  He articulated his regret for his actions and appeared to understand the seriousness of the current situation.  Mr Gibbs’ Court History depicts a recent escalation of offending, with a previous conviction for Attempted Robbery that was committed in 2007.  His pattern of offending and comments made during interview suggest an attitude that offending is an acceptable way to improve his financial situation.  It appears that previous Court-imposed penalties have not acted as a deterrent for offending.

    …”  (Exhibit R2, S10, p 32);

    ·Johnson J, in the course of her remarks when sentencing the applicant for the abovementioned offences of armed robbery on 4 November 2008, said:

    “The conclusion of the pre-sentence report was that you demonstrated little insight into your actions, although you expressed regret and claimed that you wouldn’t normally act in such a way.  There has been an escalation in your offending but you do normally act in a way that involves breaking the law and behaving with very limited concern about the interests or the property of other people.  You reiterated that you felt you had no other option at the time.  I think that’s absolute rubbish.  You had plenty of options. The one that you elected to avail yourself of was just the worst one you could have.

    The level of justification is said to pose concern in relation to how you will handle future stresses and I think that’s right.  I think the greatest concern I have from the circumstances here is that when you are released from prison, if things don’t go completely the way you wish you are unable to deal with the situation.  It also says that you externalise responsibility for your substance use and subsequent drug debt on your parole suspension, suggesting limited insight into your offending behaviour.”  (Exhibit R1, G15, p 108);

    ·Harm and Supervision Assessment by Ms J Hardiman, Community Corrections Officer, dated 24 October 2008, in which it is indicated that the applicant’s “past history and current situation suggest that he is likely to exhibit future offending that may significantly harm others” (Exhibit R2, S11, p 37).

16. The Tribunal notes, furthermore, that the applicant has a substantial history of non-compliance with judicial orders as an adult, namely:

    ·breaches of bail in 2002, 2003, 2004, 2005;

    ·breach of a community service order in 2004;

    ·breaches of intensive supervision orders in 2004, 2005 and 2006.

    The Tribunal also notes that the applicant committed the offences of attempted armed robbery and assault occasioning actual bodily harm in August 2007, and the three offences of armed robbery in September 2008, while he was on parole.

17. As regards rehabilitation, the applicant has completed the following programs during periods of incarceration:

    ·the “Moving on from Dependency” program at Albany Regional Prison on 4 April 2007;

    ·the “Pathways” intensive substance use treatment program at Bunbury Prison on 4 April 2012.

    Although he was assessed as requiring a Violent Intensive Program, the applicant signed a Program Participation Waiver on 26 April 2012 declining to participate in that program (Exhibit R2, S20).  Although the applicant, in his oral evidence, acknowledged that he does need to undertake that program, it appears that no such program will be available to him during the remainder of his present period of incarceration (Exhibit R2, S24, p 88).

18. The Tribunal notes that, notwithstanding his completion of the “Moving on from Dependency” program in April 2007, the applicant committed the offences of attempted armed robbery and assault occasioning actual bodily harm in August 2007 while under the influence of drugs (see Exhibit R1, G16), and the offences of armed robbery in September 2008 ostensibly in order to obtain money to pay for amphetamines and to pay a drug debt of $8,000 (see Exhibit R1, G15).  Although the applicant referred to his having completed the abovementioned “Pathways” program and to his not having had a positive drug test during his present period of incarceration, and stated that “for the first time” he is “100% drug free”, the Tribunal, having regard to his longstanding history of relapsing into drug use, cannot be confident that he will remain drug-free following his release from custody.

19. Having regard to the considerations referred to in paragraphs 29–32 above, the Tribunal regards it as highly likely that the applicant will engage in further serious criminal conduct upon his release from custody.

20. In the event that the applicant does engage in further criminal or other serious conduct in the future, the Tribunal expects that the nature of the harm that will be caused to members of the Australian community will be comparable to that which the applicant has caused in the past – especially in the period 2007–2008 – namely robbery or other offences against property accompanied by violence or the threat of serious violence.

21. In the Tribunal’s opinion the risk of future serious harm to the Australian community by the applicant is significant and constitutes a risk in respect of which the Australian community would understandably have a low tolerance.

    Conclusion regarding protection of the Australian community

1. Having regard to the considerations referred to in paragraphs 27–35 above, the Tribunal concludes that the “primary consideration” regarding “protection of the Australian community from criminal or other serious conduct”, referred to in paras 9(1)(a) and 9.1 of the Direction, weighs heavily in favour of cancellation of the visa.

   The strength, duration and nature of the person’s ties to Australia

2. Paragraph 9.2 of the Direction states as follows:

   “ 9.2     Strength, duration and nature of the person’s ties to Australia

   (1)   Reflecting the principles at 6.3, decision-makers must have regard to:

   (a)How long the person has resided in Australia, including whether the person arrived as a young child, noting that:

   (i)   Less weight should be given where the person began offending soon after arriving in Australia; and

   (ii)  More weight should be given to time the person has spent contributing positively to the Australian community.

   (b)  The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.”

3. The applicant was 12 (almost 13) years of age when he arrived in Australia in January 1996 and he commenced offending later that year.  He continued to offend thereafter on a frequent basis, committing offences in almost every year up until 29 December 2010 when he escaped from Albany Regional Prison in a prison vehicle, and also committing certain driving offences in the period of approximately one week during which he was at large.  In the period of 17 years for which he has lived in Australia, he has only had full-time employment for two periods of approximately 6 months each in 2001–2002 and 2007, and he has spent a substantial proportion of that period in prison.  It appears to the Tribunal that the only existing links which the applicant has to the Australian community consist of family links with, in particular, his mother, stepfather and five siblings, who all reside permanently in Australia.  The Tribunal, however, is not satisfied that any of those family links, with the possible exception of that with his mother, is very strong.  The applicant’s relationship with his 10-year-old son is considered below (see paragraph 43).

4. Although (as stated in para 6.3(4) of the Direction) “Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who [like the applicant] has lived in the Australian community for most of their life, or from a very young age”, in the Tribunal’s opinion, having regard to:

   ·the short period of time during which the applicant was in Australia before he commenced offending;

   ·his consistent and frequent offending throughout the period of his being in Australia, resulting in a substantial total period of incarceration;

   ·the minimal (if any) positive contribution which the applicant has made to the Australian community; and

   ·the weakness of his links with the Australian community;

   the level of the Australian community’s tolerance of the applicant’s record of criminal offending would be low.

5. Having regard to the considerations referred to in paragraphs 38–39 above, the Tribunal concludes that this “primary consideration” does not weigh against cancellation of the visa and is to be regarded as neutral.

   The best interests of minor children in Australia

6. Paragraph 9.3 of the Direction states as follows:

   “ 9.3     Best interests of minor children in Australia affected by the decision

   (1)Decision-makers must make a determination about whether cancellation is, or is not, in the best interests of the child.

   (2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel the visa is expected to be made.

   (3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

   (4)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 person.  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 person 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 person’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 person would have on the child, taking into account the child’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 person 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 person’s conduct.”

7. It is common ground that there is one minor child in Australia – namely, the applicant’s son who is presently 10 years of age (“the child”) – who will be affected by the decision regarding the visa.

8. Having regard to the evidence before it, the Tribunal comments on the relevant factors referred to in para 9.3(4) of the Direction, as follows:

   ·according to the applicant’s own evidence, although he was involved in the child’s upbringing up until the child was 4-5 years old, he has played no part in the child’s upbringing since his incarceration in 2008;

   ·the extent to which the applicant is likely to play a parental role in the future following his scheduled release from prison in November 2014 is problematic but the Tribunal is not confident, having regard to its opinion that it is highly likely that the applicant will re-offend, that the applicant is likely to play a positive parental role in relation to the child in the future;

   ·although the applicant’s prior conduct may not have had a negative impact on the child because the child was only 4 years old when the applicant was incarcerated and presumably had little, if any, understanding of the circumstances, in the Tribunal’s opinion it is likely that the applicant will engage in criminal conduct in the future and that such conduct will have an increasingly negative impact on the child if the child is aware of it;

   ·having regard to the duration of the child’s present separation from the applicant, and to the fact that the child’s mother and stepfather already fulfil, and are likely to continue to fulfil, a full parental role in relation to the child, the Tribunal is not satisfied that ongoing separation of the child from the applicant is likely to have any detrimental effect on the child.

9. Having regard to the considerations referred to in paragraph 43 above, the Tribunal is not satisfied that the best interests of the child necessarily favour non-cancellation of the visa.  It may be, however, that it would be in the best interests of the child to have the opportunity to develop a relationship with the applicant in the future.  That consideration would, of course, weigh against cancellation of the visa but, in the Tribunal’s opinion, having regard to the considerations referred to in paragraph 43 above, the weight that should be given to that consideration is minimal.

10. The Tribunal concludes, therefore, that, at its highest, this “primary consideration” weighs against cancellation of the visa only to a slight degree.

    Whether Australia has international non-refoulement obligations to the person

11. Paragraph 9.4 of the Direction states:

    “ 9.4     International non-refoulement obligations

    (1)   In cases where claims which may give rise to international non-refoulement obligations are raised by the person or are clear from the facts of the case, they must be given consideration if the person is in Australia.

    …

    (3)Australia has non-refoulememnt obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); and the International Covenant on Civil and Political Rights (ICCPR) and its Second Optional Protocol. …”

12. The applicant has not raised any claim which may give rise to international non-refoulement obligations; nor is any such claim clear from the facts of the applicant’s case.  Accordingly, pursuant to para 9.4(1) of the Direction, the Tribunal is not required to consider such matters.

13. This “primary consideration” is, therefore, not applicable or relevant to the applicant’s case and the Tribunal, consistently with para 8(1) of the Direction, has not taken it into account.

    Other relevant considerations

14. Paragraph 10 of the Direction states as follows:

    “ 10     Other considerations – visa holders

    (1)   In deciding whether to cancel a visa, other considerations must be taken into account where relevant.  These considerations include (but are not limited to):

    (a)Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;

    (b)Impact on Australian business interests;

    (c)Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;

    (d)The extent of any impediments that the person 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:

    (i)   The person’s age and health;

    (ii)  Whether there are substantial language or cultural barriers; and

    (iii) Any social, medical and/or economic support available to them in that country.”

    It is common ground that the considerations referred to in subparas (a) and (d) of para 10(1) of the Direction are relevant to the applicant’s case.  The Tribunal notes, however, that the list of considerations set out in para 10(1) is not exhaustive.

    Effect of cancellation of the visa on the applicant’s immediate family in Australia

15. As previously mentioned, the members of the applicant’s immediate family in Australia are his mother, stepfather and 5 siblings (4 sisters and one brother), as well as his 10-year-old son.  The Tribunal understands that they are all Australian citizens or permanent residents.

16. The effect of cancellation of the visa on the applicant’s son has already been considered in the context of the “primary consideration” regarding the best interests of the child (see paragraphs 43–44 above) and will not be further considered here.

17. There is no information from any of the other abovementioned members of the applicant’s immediate family in Australia, regarding the effect of cancellation of the visa on them, which is in evidence before the Tribunal.  The Tribunal, however, is prepared to assume that cancellation of the visa and the applicant’s removal from Australia to New Zealand would cause some emotional distress to his mother.  To that extent, this consideration weighs against cancellation of the visa but the Tribunal does not attach significant weight to it.

    The extent of any impediments that the applicant may face if removed from Australia to New Zealand

18. The applicant did not refer to any particular impediments that he may face if removed from Australia to New Zealand other than that he has no immediate or extended family members (other than an aunt whose address he does not know) in New Zealand.

19. Having regard to the evidence before it, the Tribunal is not satisfied that the applicant would face any significant impediment in New Zealand.

20. Finally, the Tribunal accepts that the applicant, if removed from Australia, would be likely to experience emotional distress by reason of his indefinite physical  separation from his son and his being denied the opportunity to develop a meaningful relationship with his son, and the Tribunal accordingly accepts that that consideration weighs against cancellation of the visa.  The Tribunal, however, does not attach significant weight to this consideration.

    Conclusion – the Preferable Decision

21. As required by para 7(1)(a) of the Direction, the Tribunal, informed by the principles in para 6.3, has taken into account the relevant “primary considerations” and the other relevant considerations in this case and has assessed the weight which, in its opinion, it is appropriate to give to each of those “primary considerations” and other considerations.

22. In the Tribunal’s assessment the “primary consideration” regarding “the protection of the Australian community from criminal or other serious conduct”, which weighs heavily in favour of cancellation of the visa, far outweighs the “primary consideration” regarding “the best interests of [the applicant’s child] in Australia” and those other relevant considerations (referred to in paragraphs 50–55 above) which weigh against cancellation of the visa.

23. Having regard to all the circumstances of this case, the Tribunal concludes that:

    ·the significant risk of future serious harm to the Australian community presented by the applicant is unacceptable and should not be tolerated by the Australian community; and

    ·the applicant has forfeited the privilege of continuing to hold the visa and of remaining in Australia.

24. Accordingly, the preferable decision in this case is that the visa be cancelled under s 501(2) of the Act.

    Decision

25. For the above reasons the decision under review is affirmed.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop.

...........[sgd D Brodie]...................................

Dated 17 May 2013

Date of hearing	9 May 2013
Representative of the Applicant	In person (unrepresented)
Representative of the Respondent	Ms S Wende
Solicitors for the Respondent	Sparke Helmore