Steve and Minister for Immigration and Border Protection (Migration)

[2016] AATA 1054

Steve and Minister for Immigration and Border Protection (Migration) [2016] AATA 1054 (21 December 2016)

Division	GENERAL DIVISION
File Number	2016/4749
Re	Pio Steve
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Dr L Bygrave, Member
Date	21 December 2016
Place	Sydney

The Tribunal affirms the decision under review.

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

Dr L Bygrave, Member

CATCHWORDS

MIGRATION – visa cancellation – Absorbed Person visa – character test – substantial criminal record – Direction No. 65 – protection of community – seriousness of conduct – drug offences – moderate risk of reoffending – expectations of the Australian community – strength of ties to Australia – extent of impediments to removal – Applicant New Zealand citizen – minimal employment history – decision affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 499(2A), 501, 501CA

CASES

Anaki and Minister for Immigration and Border Protection [2016] AATA 693

Do and Minister for Immigration and Border Protection [2016] AATA 390

LMYW and Minister for Immigration and Border Protection [2016] AATA 936

SECONDARY MATERIALS

Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Dr L Bygrave, Member

21 December 2016

INTRODUCTION

1. The applicant, Mr Pio Steve, is a 49 years old citizen of New Zealand who arrived in Australia on 6 May 1968.

2. On 1 September 1994, Mr Steve was granted an Absorbed Persons visa.

3. On 29 April 2016, Mr Steve’s Absorbed Persons visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) after he was sentenced to three years imprisonment on 22 May 2015.

4. On 21 May 2016, Mr Steve lodged a Request for Revocation of a Mandatory Visa Cancellation Under S501(3A).

5. On 2 September 2016, the Minister’s delegate decided not to revoke the cancellation decision. Mr Steve subsequently lodged an application with the Administrative Appeals Tribunal seeking a review of this decision.

6. The matter was heard in Sydney on 24 and 25 November 2016. Mr Steve attended the hearing in person and had legal representation.

   BACKGROUND

7. Mr Steve was born in New Zealand in 1967 and came to Australia with his parents when he was 13 months old. He has never returned to New Zealand.

8. His father was a New Zealand citizen. His mother was born in Poland; she came to Australia with her family after the Second World War and became an Australian citizen in 1964.

9. Mr Steve was the eldest of three siblings. There were some arguments in the family home during his childhood, which were attributable to his father’s behaviour. His father died when Mr Steve was in his late teenage years and his younger sister died when he was 20 years old. He described close continuing relationships with his mother and younger brother.

10. After completing his Year 10 School Certificate, Mr Steve trained as an apprentice chef and worked as a ‘chain man’ for Blacktown Council.

11. Mr Steve was introduced to heroin by his then-girlfriend’s brother when he was 18 years old and he subsequently developed an addiction.

12. Since his late teenage years, Mr Steve has been ‘in and out of jail’. He lived in Queensland for several years in the late 1990s; during this time, he was able to maintain drug abstinence and consistent employment. Mr Steve returned to Sydney in 2000 and relapsed into substance use.

13. In 2008, Mr Steve was hit by a bus and sustained injuries to his left eye, nerve damage and impaired sensation on his left side and spinal damage in his lower back.

    Criminal record

14. Mr Steve has an extensive criminal record dating from 1985 to 2015. Some of the criminal offences described in his National Police Certificate dated 22 March 2016 are set out below:[1]

    ·30 March 1990: conviction in Penrith District Court: ‘Accessory after the fact of break, enter and steal’ – minimum sentence of two years imprisonment; ‘Larceny motor vehicle’ – minimum sentence of two years imprisonment; and ‘Break, enter and steal’ – minimum sentence of two years imprisonment.

    ·30 October 2003: conviction in Penrith District Court: ‘Driving while disqualified from holding a licence’ – sentence of six months imprisonment; ‘Break and enter building and steal value <=$15,000’ – sentence of two years imprisonment with a non-­parole period of 18 months.

    ·25 June 2010: conviction in Parramatta Drug Court: ‘Break and enter building and steal value <=$15,000’ – sentence of two years and six months imprisonment with a non-parole period of 12 months; ‘Break and enter building and steal value <=$15,000’ – sentence of three years and six months imprisonment with a non-parole period of 15 months; ‘Shoplifting’ – sentence of three months imprisonment and ‘Possess prohibited drug’ – sentence of one month imprisonment.

    ·16 September 2010: conviction in Blacktown Local Court: ‘Affray’ – sentence of one month imprisonment; and ‘Common assault’ – sentence of three months concurrent imprisonment.

    ·12 August 2011: conviction in Mt Druitt Local Court: ‘Common assault’ – sentence of nine months imprisonment with a non-parole period of six months.

    ·21 August 2014: conviction in Mt Druitt Local Court: ‘Shoplifting value <= $2,000’ – sentence of 12 months imprisonment with a non-parole period of six months.

    ·22 May 2015: conviction in the Parramatta District Court: ‘Aggravated break and enter and commit serious indictable offence in company’ – sentence of three years imprisonment including a non-parole period of two years; and ‘Goods suspected of being stolen in/on premises’ – sentence of three months imprisonment.

    [1] Exhibit R1 at G4, pp 27-35.

15. Mr Steve also has a substantial record of traffic offences including driving an unregistered and uninsured vehicle, speeding, and several offences of driving while disqualified.

    RELEVANT LEGISLATION AND ISSUES

    The power to revoke a visa cancellation

16. Pursuant to s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test. A person is taken to not pass the character test if he or she has a ‘substantial criminal record’. A person who has been sentenced to a term of imprisonment of 12 months or more has a ‘substantial criminal record’ as defined in ss 501(6)(a) and (7) of the Act.

17. Under s 501CA(4) of the Act, the Minister (and therefore the Administrative Appeals Tribunal on review) has the discretion to revoke the original cancellation decision if the Minister is satisfied that the person passes the character test or ‘there is another reason why the original decision should be revoked’.

18. Mr Steve has a ‘substantial criminal record’ and so he does not pass the character test. Mr Steve does not dispute this.

19. I must therefore consider whether there is another reason to revoke the original cancellation decision.

20. When considering whether to revoke the cancellation decision, I am required under s 499(2A) of the Act to have regard to the guidance contained in Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).

21. The Direction sets out the policy of the government and includes a number of introductory statements including the expectation that non-citizens will obey Australian laws and behave in accordance with Australian community values and standards if they wish to retain the privilege of coming to or remaining in Australia.

22. The Principles set out in cl 6.3 of the Direction provide a framework to approach deciding whether to cancel a visa. The Principles state:

    (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)  The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)  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 forfeit the privilege of staying in Australia.

    (4)  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 consideration may be insufficient to justify not cancelling or refusing the visa.

    (5)  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.

    (6)  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.

    (7)  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.

23. Informed by the Principles, I must take into account the factors set out in Part C of the Direction in determining whether to revoke a mandatory cancellation of a non-citizen’s visa under s 501CA of the Act. The primary considerations are:

    (a)protection of the Australian community from criminal and other serious conduct;

    (b)best interests of minor children in Australia affected by the decision; and

    (c)expectations of the Australian community.

24. Part C also sets out other considerations which must be taken into account. Other considerations relevant to this matter are:

    (a)strength, nature and duration of the applicant’s ties to Australia; and

    (b)extent of impediments if the applicant is removed from Australia.

25. Clause 8(2) of the Direction stipulates that information and evidence from independent and authoritative sources should be given appropriate weight in applying the primary and other considerations.

    Protection of the Australian community

26. Clause 13.1(2) of the Direction states the Government’s commitment to protecting the Australian community from harm by non-citizens and requires that I consider:

    (a)the nature and seriousness of Mr Steve’s conduct to date; and

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

27. I will first consider the nature and seriousness of Mr Steve’s conduct to date.

28. Mr Steve’s criminal record, which is set out in part in paragraph 14, shows he committed an extensive number of offences between 1985 and 2015. In sentencing remarks by Judge Armitage on 22 May 2015, Mr Steve was described as a ‘repeat offender, both in terms of offences of dishonesty and drug offences’.[2]

    [2] Exhibit R1 at G6, p 60.

29. In a psychological assessment of Mr Steve dated 7 September 2016, Ms Caroline Hare (Forensic Psychologist) described his offending behaviour as follows:

    He has been sentenced to several episodes in custody and his record evidences a range of offence types, including: driving-related offences; acquisitive offences; drug-related offences (possess, administer); escape lawful custody; breach of recognisance; resist officer in execution of duty; stalk/ intimidate intend fear physical etc harm; custody of knife in public place; affray; common assault. In instances where Mr Steve has been violent, he reported that these offences occurred under the influence of substances, and were committed against strangers, not resulting in significant harm. His extensive acquisitive offending was apparently motivated by his need to gain finances to fund his drug addiction.[3]

    [3] Exhibit A3, para 22.

30. At the Tribunal hearing, counsel for Mr Steve did not dispute that his criminal record – particularly the offences which he committed on 5 February 2014 – is very serious. Mr Steve also acknowledged that his criminal history is extensive and expressed regret.

31. The Tribunal heard evidence about incidents in September 2010 and August 2011 for which Mr Steve was convicted of common assault. Mr Steve told the Tribunal he was not able to recall either incident because he was affected by drugs. However, he said that he was not a violent person because he has never intentionally hurt or killed anyone. I note the sentencing remarks for the offence committed on 2 August 2011; the Magistrate observed the victim must have been ‘absolutely terrified’ due to Mr Steve’s bizarre behaviour under the influence of drugs, and recorded that his behaviour in a public place was argumentative, belligerent and swearing, and he punched the victim in the head.[4]

    [4] Exhibit R1 at G7, pp 78-80

32. The (then named) Department of Immigration and Citizenship (the Department) wrote to Mr Steve on 30 May 2007 and 28 June 2013 to advise him that his Absorbed Persons visa could be cancelled under s 501 of the Act because he had been convicted of a criminal offence.[5] Mr Steve told the Tribunal that he had received warnings from the Department but said he did not understand the Department’s intention to cancel his visa until he was detained at Villawood Immigration Centre in May 2016.

    [5] Exhibit R1 at G9 and G10.

33. Considering the relevant factors set out in cl 13.1.1 of the Direction, I am satisfied that:

    ·Mr Steve has committed very few violent offences and not committed any sexual crimes. While I accept that Mr Steve’s offences have occurred when he is under the influence of drugs, I do not accede that this excuses or mitigates his behaviour.

    ·There is no evidence before the Tribunal that Mr Steve has committed crimes against vulnerable members of the community or government representatives.

    ·Mr Steve’s criminal offending involving 47 sentencing occasions over 30 years, reflects a pattern of repeat offending.

    ·Mr Steve continued to commit criminal offences after he was warned by the Department in 2007 and 2013 that this behaviour may result in him being removed from Australia.

    ·There is no evidence before the Tribunal that Mr Steve has committed any offences since his visa cancellation or has ever provided false or misleading information to the Department.

34. I am satisfied that the frequency and cumulative effect of Mr Steve’s criminal offending is a matter of serious concern. I find that the nature and seriousness of his offending weighs heavily against him.

35. I must also consider the risk to the Australian community should Mr Steve commit further offences or engage in other serious conduct.

36. A pre-sentence psychological report of Mr Steve written by Mr John McQuillen (Psychologist) and endorsed by Dr Xiao-ou Zhu (Senior Psychologist) on 3 February 2015 stated that Mr Steve’s ‘offending behaviour is directly related to his substance use’ and described his substance abuse history as ‘characteristic of a Severe Opioid Use Disorder’.[6]

    [6] Exhibit R1 at G8, pp 84-85.

37. Mr McQuillen and Dr Zhu described Mr Steve’s participation in drug rehabilitation programs as follows:

    ·1996: participation in a rehabilitation program at Odyssey House, which involved a ten months residential program and an outpatient program under a community supervision order.

    ·2009: supervision by the Drug Court before returning to custody following a possession conviction.

    ·2011: completion of New South Wales Community Services ‘Getting Smart’ program.

    ·2012: transfer from methadone to buprenorphine but continued to use heroin.[7]

    [7] Exhibit R1 at G8, p 85.

38. In February 2015, Mr McQuillen and Dr Zhu noted that Mr Steve’s involvement in rehabilitation and other programs had been unsuccessful to date, and rated him in the ‘medium range of reoffending relative to other offenders’.[8]

    [8] Exhibit R1 at G8, p 83.

39. Between September 2015 and April 2016, Mr Steve participated in the Ngara Nura program at Long Bay Correctional Centre in a further effort to address his issues of substance abuse. Mr Steve successfully completed all three stages of the program, which included becoming a mentor for other program participants. A letter from Mr Steve’s support counsellor provided the following observations about his participation in the program:

    He has demonstrated a willingness to take a deeper look into both his substance abuse and crime history, and reflect on the impact of these on his life, his family and the community. Mr Steve’s [sic] has been able to develop a realistic relapse prevention place to stay AOD free, his plan reflects a good insight into how to manage his triggers and warning signs. …

    Mr Steve discussed his motivation for change, and hopes for the future including goals related to his recovery and employment. He is aware that he cannot be complacent about his recovery …

    Mr Steve has made significant interpersonal progress and shows every indication of being focused and committed to his recovery.[9]

    [9] Exhibit R1 at G17, p 163.

40. In September 2016, Ms Hare assessed the aggregate risk of Mr Steve reoffending as ‘moderate’ based on his history and the changes he has made since his last criminal conviction. She noted that:

    … his comprehensive relapse prevention plan that outlines community-based support agencies (in Sydney where he hopes to reside) that he will be connected with enhances his opportunities to remain drug-free, which is fundamental to managing his likelihood of recidivism.

    …

    I am also of the opinion that whilst his history does not excuse his behavioural choices, they are better understood within the context of the acute grief and loss he experienced in early adulthood that triggered his reliance on drugs as a dysfunctional means of coping. Having been able to address his coping, it is my opinion that Mr Steve is in a good position to maintain abstinence and lead a prosocial life hereafter, with the support of his family, his friends, and professionals within the Australian community…[10]

    [10] Exhibit A3, paras 36-37.

41. At the Tribunal hearing, Mr Steve acknowledged that he has previously participated in rehabilitation programs and then relapsed into substance use, but said that the Ngara Nura program was ‘different’ and he now feels he can ‘say no to drugs’. He spoke about his substance addiction as a constant battle, and was able to identify both the triggers for his risk of relapsing and systems to support him from relapsing. His support systems include his family, Narcotics Anonymous (NA), the Ngara Nura Maintenance Group (NNMG), and friends he has met through NA and NNMG. Mr Steve reflected honestly and openly about what had, and had not, worked for him in addressing his substance addiction in the past. He provided assurances at the Tribunal hearing that the cancellation of his visa had been a ‘big wakeup call’ for him and he would ‘not be in trouble again’.

42. Based on the evidence before me, including Ms Hare’s assessment in September 2016 that Mr Steve’s risk of recidivism is ‘moderate’, I am not persuaded that Mr Steve will not relapse and reoffend should he be released into the Australian community. In considering the nature of the harm and potential risk to the Australian community if Mr Steve were to reoffend in the future, I am mindful of the nature and seriousness of his past criminal offences.

1. On balance, I find that the protection of the Australian community weighs heavily against revoking the cancellation decision.

   The best interests of minor children in Australia affected by the decision

2. This primary consideration is not relevant to this matter as there are no minor children in Australia affected by the decision.

   The expectations of the Australian community

3. The Direction states that the Australian community expects non-citizens to obey the law. It also notes that non-revocation may be appropriate because the nature of the character concerns or offences are such that the community would expect that the person should not hold a visa (cl 13.3(1)).

4. The Direction does not refer to studies or other evidence which would enable me to formulate a precise view of public attitudes and values. I note the decision by the Tribunal in Do and Minister for Immigration and Border Protection, which states:

   A decision-maker is, to some extent, required to guess at the community’s expectations… I must form my view having regard to contents of the Direction (which is, after all, a statement prepared by the community’s elected representatives), the sentencing remarks of the court and common sense. As I begin my deliberations, I assume the Australian community would be fair-minded and mature… The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done [emphasis added].[11]

   [11] [2016] AATA 390, [at 23].

5. I also reflect on a recent Tribunal decision that relevantly articulates the following views about rehabilitation:

   The community also believes in the possibility of rehabilitation and redemption. That much is clear from s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) which sets out the objectives of sentencing in the criminal courts. In doing so, the legislation articulates the approach of the common law that was discussed in cases like Veen v R [1979] HCA 7; (1979) 143 CLR 458 and Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465. Those objectives include punishment or retribution, expiation, incapacitation, deterrence, denunciation – and rehabilitation [emphasis added].[12]

   [12] LMYW and Minister for Immigration and Border Protection [2016] AATA 936, [at 56].

6. I consider the deliberation of Australian community expectations involves ‘bringing appropriate perspective and proportionality to bear in the assessment of risk’ and that ‘the expectation must be considered contextually, relative to factors arising in relation to other principles’ set out in the Direction.[13]

   [13] Anaki and Minister for Immigration and Border Protection [2016] AATA 693, [at 89].

7. Mr Steve’s criminal record has been extensively described in my consideration of protection of the Australian community. I do not believe his record would be viewed in any positive way by the Australian community.

8. At the Tribunal hearing, Mr Steve expressed remorse for his criminal record. He also wrote in his statement dated 21 May 2016:

   I still accept full responsibility for [my offences]. I realise what I did was wrong, and that I have been doing it repeatedly for a long time. If I am to be released and allowed to stay in Australia, I am determined that my future will be different.

9. He further stated his intentions to stay off drugs and get back to work:

   With the help of my family and friends, I am determined to stick to my release plan. I will live with my mother and my brother … go to my meetings and get my life back on track.

   …

   I realise that Australia has given me a lot of chances, and I regret that I have wasted them … I am determined to stay off drugs and to give something back to the people and the country that has given so much to me.[14]

   [14] Exhibit R1 at G19.

10. In considering Australian community expectations, I give some weight to Mr Steve’s intention to rehabilitate and stop his past cycle of relapsing and offending behaviour. 

11. Mr Steve has lived in Australia since he was 13 months old. In his written statement on 21 May 2016, he recorded:

    I have no memory of or connection to New Zealand. All of my family are Australian citizens. My mother, brother and daughter are here. I grew up, went to school, and have lived my life here, and I consider Australia my home. I have no family or friends in New Zealand, and I have never even been back to visit.

12. I note that Mr Steve made an application for Australian citizenship in 1983, which was refused in 1986 because of his criminal record.[15]

    [15] Exhibit R1 at G20, p 199 and G22, p 257.

13. Having regard to cl 6.3(5) of the Direction, which states in part that ‘…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,’ the Australian community would anticipate a nuanced approach to considering the extent to which Mr Steve is a member of the Australian community even though he is not a citizen. It would seek to consider any positive contributions to society, such as employment, community activities and/or family relationships; and weigh this against his adverse and antisocial behaviour.

14. There is little information before the Tribunal about Mr Steve making a positive contribution to Australia. Although I place less weight on the statement of Mrs Steve due to her relationship with him, I accept her evidence that:

    He was a good child and is a good person at heart. If someone is in trouble, he is the first person to help them. When he is at home, he helps me around the house. He helps his daughter … by sending her money. Even when he is in jail, he tries to help the other inmates by providing them with advice and support.[16]

    [16] Exhibit R1 at G19, p 193.

15. I also note that Mr Steve recently participated successfully in the Ngara Nura program, which meant that he became a mentor to other participants in the program.[17]

    [17] Exhibit R1 at G17, p 162.

16. The Australian community would expect Mr Steve to be able to maintain his close relationship with his mother and brother; and provide him with a chance to mend his ‘on-again, off-again’ relationship with his 20 years old daughter. In relation to this, I note that both Mr Steve’s mother and brother have passports and health permitting, would be able to travel to New Zealand to see him.

17. However, the Australian community would have a poor view of Mr Steve’s short employment history. It would also recognise the multiple opportunities Mr Steve has been given to date to rehabilitate and stop his offending behaviour. It would have little patience with providing him yet another chance, particularly after he received warnings from the Department in 2007 and 2013 that further criminal offending could lead to his removal from Australia.

18. Finally, I would like to comment on Mr Steve’s behaviour during the Tribunal hearing. Mr Steve presented as remorseful of his past criminal behaviour and overwhelmed by the realisation that he could be removed from Australia. He gave evidence to the Tribunal for more than five hours and, although he could not remember many events, answered all questions with honesty and sincerity.

19. Unfortunately for Mr Steve, this is not sufficient to mitigate his extensive criminal record.

20. On balance, I am satisfied the third primary consideration counts against revoking the mandatory cancellation under s 501CA of the Act.

    Other considerations

21. While the primary considerations carry particular weight, the Direction acknowledges at cl 14 that other considerations must be taken into account where relevant.

22. There are no international non-refoulement obligations in this matter. I was not provided with any evidence about the impact of Mr Steve’s removal on any Australian business interests. There is no evidence of any impact on victims from Mr Steve’s criminal behaviour.

23. I now consider the strength, nature and duration of Mr Steve’s ties to Australia and the extent of impediments if he is removed to New Zealand.

24. I have set out evidence about Mr Steve’s strong familial ties to Australia. Mr Steve has resided in Australia since he was 13 months old. His removal from Australia would result in the separation from his family, including his mother, brother and daughter. He has a close relationship with his mother and brother, both of whom have health concerns.

25. Mr Steve’s written statement on 21 May 2016 noted:

    If I were forced to leave Australia, I don’t know what I would do. I can’t imagine what it would do to my family, especially my mother. She is getting older, and I need to take care of her …

    I can’t imagine how I would survive in New Zealand. Everything I know is here. I don’t know anyone or anything about the country there. I wouldn’t have any support.

26. While Mr Steve does not currently have a close relationship with his daughter, I accept that he would like to rectify this situation.

27. I find that the consideration of Mr Steve’s ties to Australia weighs heavily in his favour.

28. The impediments to removing Mr Steve from Australia rely on his detachment from family and NA/NNMG members who provide support to Mr Steve to deal with his drug addiction. Mr Steve has no medical conditions that could not be treated within the New Zealand health system. There is no information before the Tribunal that he would not be able to live and work in New Zealand. While I accept that Mr Steve does not know anyone in New Zealand, both his mother and brother have passports and would be able to visit him.

29. I therefore find that there are no substantial impediments, apart from being removed from his family, that prevent Mr Steve commencing a life in New Zealand.

    CONCLUSION

30. I have already indicated the first and third primary considerations weigh against Mr Steve. The second primary consideration is not relevant.

31. In regard to the other considerations, Mr Steve’s ties to Australia weigh in his favour and the impediments weigh against him. However, the weight I give these other considerations is low and does not outweigh the primary considerations.

32. In these circumstances, it is not appropriate for me to revoke the refusal of visa decision.

    DECISION

33. The Tribunal affirms the decision under review.

I certify that the preceding 75 (seventy -five) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated 21 December 2016

Date(s) of hearing	24 November 2016, 25 November 2016
Counsel for the Applicant	N Poynder
Solicitors for the Applicant	KAH Lawyers
Counsel for the Respondent	R Francois
Solicitors for the Respondent	Sparke Helmore