Te Kanawa and Minister for Immigration and Border Protection (Migration)

Te Kanawa and Minister for Immigration and Border Protection (Migration) [2016] AATA 906 (15 November 2016)

Division

GENERAL DIVISION

File Number

2016/3907

Re

Shaun Te Kanawa

APPLICANT

And

Minister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal
Dr Gordon Hughes, Member

Date 15 November 2016

Place Melbourne
The decision under review is set aside and the Tribunal exercises its discretion to revoke the cancellation of the Applicant's Class TY subclass 444 Special (Temporary) visa.

.........................[sgd].............................................
Dr Gordon Hughes, Member
IMMIGRATION AND BORDER PROTECTION - Exercise of discretion to revoke cancellation of visa – Applicant committed multiple crimes over 4 year period – personal circumstances of non-citizen – resided in Australia from the age of six years – limited family ties in New Zealand - drug addiction attributed to breakup of family unit – evidence of remorse and rehabilitation – evidence of family support – expectations of Australian community
Legislation
Migration Act 1958 (Cth) sections 501(3A), 501(6)(a), 501A, 501CA(4)
Secondary Materials
Direction No. 65 issued under the Act – Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of Visa under Section 501CA
International Covenant on Civil and Political Rights, adopted 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
REASONS FOR DECISION
Dr Gordon Hughes, Member

The Applicant was seeking a review of a decision by the Minister for Immigration and Border Protection under section 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the cancellation of his Class TY subclass 444 Special (Temporary) visa under section 501(3A) of the Act.
The Applicant accepted that he did not satisfy the character test as defined in section 501(6)(a) of the Act because he had a substantial criminal record. The issue before the Tribunal was accordingly whether there was any reason why the mandatory cancellation should be revoked in accordance with section 501CA(4)(b)(ii) of the Act and, if so, whether the Tribunal should exercise its discretion under section 501CA(4) to revoke the cancellation.
Legislation
Section 501A of the Act provides that the Minister must cancel a visa if satisfied that a person does not pass the character test in certain circumstances. The relevant parts of the section for the purposes of this determination are:
…
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)     … and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
(3B)Subsection (3A) does not limit subsections (2) and (3).
(4)The power under subsection (3) may only be exercised by the Minister personally.
(5)The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3) or (3A).
Character test
(6)For the purposes of this section, a person does not pass the character test if:
(a) he person has a substantial criminal record (as defined by subsection (7)); or
…
(c)having regard to either or both of the following:
(i)     the person's past and present criminal conduct;
(ii)     the person's past and present general conduct; the person is not of good character; or
(d)in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
(i)     engage in criminal conduct in Australia; or
(ii)     harass, molest, intimidate or stalk another person in Australia; or
(iii)     vilify a segment of the Australian community; or
(iv)    incite discord in the Australian community or in a segment of that community; or
(v)     represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way; or
…
Otherwise, the person passes the character test.
Substantial criminal record
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
…
Section 501CA(4) of the Act empowers the Minister to revoke a mandatory cancellation under section 501 in the following circumstances:
The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 6.3 of Direction No. 65 issued under the Act – Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of Visa under Section 501CA - sets out the following principles to guide decision makers when exercising the discretion to, inter alia, revoke a mandatory cancellation under section 501CA:
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.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 to 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 considerations 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.
Relevant factors to be considered in the context of making a revocation decision are set out in Part C of Direction 65 and are referred to as relevant in the body of this decision.
Discussion
The Applicant is a New Zealand citizen, aged 25 years. He first arrived in Australia at the age of 6 years. Between 1997 and 2010, he departed Australia on 8 occasions for periods of up to 19 days but he has not left Australia since December 2010.
The Applicant's family ties to Australia include his mother, brother, sister and members of his extended family. His father lives in New Zealand.
The Applicant has an extensive criminal history, commencing in 2012. He had numerous convictions between 2 November 2012 and 20 January 2016 for offences including burglary, theft, possession of a drug of dependence, dealing with properties suspected as the proceeds of crime, possession of a prohibited weapon, attempting to obtain property by deception, theft of a motor vehicle and one charge of unlawful assault. He has been sentenced to prison on multiple occasions, varying from 11 days to 20 months.
On 12 February 2016, the Applicant was notified that his visa had been cancelled pursuant to section 501(3A) of the Act. It is now necessary for the Tribunal to consider whether there are reasons why the mandatory cancellation of his visa should be revoked in accordance with section 501CA(4)(b)(ii) of the Act, and, if so, whether the Tribunal should exercise its discretion under section 501CA(4).
Decision framework
Under section 501(3A) of the Act, the decision maker must cancel a visa if satisfied that the person does not pass the character test and the individual is serving a sentence of imprisonment on a full time basis in a custodial institution. It was acknowledged therefore that the Applicant did not pass the character test as defined in section 501(6) on the basis of his "substantial criminal record".
The exercise of discretion to revoke the cancellation under section 501CA(4) must be carried out in accordance with any specified written Ministerial directions made under s 499 of the Act, for the present purposes being Direction 65.
Paragraph 6.3 of Direction 65 sets out various principles which are to be taken into account as primary considerations when considering revocation of a cancellation. Part C (paragraphs 13 and 14) elaborates on the primary considerations to be taken into account when deciding whether to revoke the mandatory cancellation of a non-citizen's visa.
Pursuant to paragraph 13(1) of Direction 65, the decision-maker must consider whether to revoke the cancellation of a visa under section 501(3A) by reference to "the specific circumstances of the case".
Much therefore turns upon the nature of the evidence presented to the Tribunal.
Evidence
Evidence was heard from the Applicant (via video link from the Christmas Island Immigration Detention Centre), counsellor Dirk Franke, the Applicant's brother Marere Te Kanawa, and the Applicant's mother Judith Te Kanawa.
The Applicant told the Tribunal that his criminal activity had been motivated primarily by a need to finance his drug addiction at the time. He said he had now been free from drugs for about 14 months, even though whilst imprisoned in Victoria most recently he was "surrounded by drugs and drug users".
The Applicant gave detailed evidence about his relationship with his family. He had not admitted his drug use or criminal activity to them at the time he was offending, principally because he was "ashamed to be around them". He had lived with his brother for around 6 months in St Kilda which provided some stability in his life but his brother then moved to Perth to take up a job.
The Applicant's father was retired and had moved back to New Zealand. The Applicant said they spoke on the telephone about once a fortnight and that his father has a partner with whom the Applicant has never really had a good relationship. The Applicant’s father had told him that if the Applicant moves back to New Zealand he may stay with him for two weeks but will then have to move on.
The Applicant said that if allowed back into Australia, he would live with his brother Marere and join him in his construction business. He also understood that his mother, who lives on the Gold Coast and to whom he speaks about twice a week, might be prepared to move back to Melbourne.
The Applicant said that he had first turned to drugs in order to deal with the pain of separation from his mother. She had left a happy family when he was young and he did not understand why. His relationship with his mother had now improved and, if allowed back to Australia, his entire relationship with the family would be different. The Applicant emphasised to the Tribunal that he had never realised until his detention at Christmas Island how much he needed his family's support.
Under cross-examination, the Applicant acknowledged that in the past he had turned to drugs when his life had become difficult. Not only had he used drugs when his mother left but he also relapsed when he split with his partner in early 2015. He was confident he would not relapse now however, because, he said, "I have never wanted more to change". He said he valued the support of his family, and a full time job would keep him busy. The fear of deportation would also be a further deterrent from engaging in any illicit activity.
In relation to the charge or possessing a prohibited weapon, the Applicant explained that this had been a knuckleduster. It was found in his possession when he was arrested whilst committing a burglary. He had never used it or intended to use it and never sought to confront individuals when committing a burglary. The Applicant expressed regret over his burglaries, saying "no one deserves to have their property taken from them".
The Applicant acknowledged that he had been convicted of one crime of violence. This involved an assault on a person who he believed was taking advantage of his younger sister. He acknowledged that his actions regarding this incident were wrong.
Overall the Applicant impressed the Tribunal as a genuinely remorseful individual who responded directly and truthfully to questions put to him. He became visibly emotional when talking about his family and when confronting the prospect of being permanently removed from them.
Evidence was given by AOD (Alcohol and Other Drugs) counsellor Dirk Franke. Mr Franke impressed as a thoughtful, honest and direct witness.
Mr Franke had initial contact with the Applicant in 2012 when the Applicant was mandated to see him for a period of three months as a part of his Court Referral and Evaluation for Drug Intervention and Treatment bail program conditions. Mr Franke thought that progress was being made by the Applicant in reducing his dependence on drugs but he had been arrested before the end of the program on charges relating to matters preceding his treatment.
In July 2014, the Applicant was again referred to AOD counselling under a Drug Treatment Order issued by the Dandenong Drug Court.
Mr Franke said that the Applicant had impressed him as an honest participant in the program, accurately reporting his periodic lapses. He said the fact that the Applicant had been free from drugs now for 14 months was a good sign of progress although the underlying proclivity towards usage could never be eradicated, just managed.
Mr Franke emphasised that the key to the Applicant’s ultimate recovery lay in dealing with the "root cause" of his drug use, being his unsettled family relationships stemming from the original departure of his mother. He needed stability around him which was more likely to occur in Australia than in New Zealand where he knew virtually no one. There would be advantages in moving to New Zealand in that he would be permanently free from drug-dependent former associates, but the better outcome would be for him to enjoy strong family support in Australia.
Evidence was also heard from the Applicant's brother, Marere Te Kanawa. Marere confirmed that the family had been a happy unit prior to the mother's departure. He understood his brother's predicament and was keen to help him. The Applicant would live with Marere and his fiancé, and Marere would provide him with work in his construction business.
Marere said that he had suspected his brother's drug usage previously but had been reluctant to raise the issue. He would now have no hesitation in intervening if he had reason to suspect a relapse. He would help the Applicant manage his money and to obtain a driver's licence and buy a car, and would not charge the Applicant any rent, enabling him to save.
The Tribunal regarded Marere Te Kanawa as an honest and forthright witness.
Evidence was also heard from the Applicant's mother, Judith Te Kanawa. Mrs Te Kanawa explained the reasons for her departure from the family unit. She had been abused as a foster child and this had left her disturbed and unsettled in many respects. As a result of this trauma she had left what was a happy family in order to "find herself".
Mrs Te Kanawa became emotional when acknowledging the impact which her departure had had on her children.
Mrs Te Kanawa said that her relationship with her son had progressively improved and she had been in contact with him every second day since he had been at Christmas Island. She saw a change in her son, who had now become more positive, would occasionally joke, and who had acknowledged his past failings. She would move to Melbourne from the Gold Coast if her son was allowed to return to Australia to be with him.
Mrs Te Kanawa doubted her son would return to his former lifestyle involving drugs and crime. He was family orientated and was looking forward to becoming an uncle and godfather in the near future. The role of godfather was important to him. She confirmed she would confront her son if she thought he was using drugs and was confident that he would respond to her and his brother on this issue.
Under cross-examination, Mrs Te Kanawa emphasised that whilst she had returned to live in New Zealand between 2007 and 2011, this was not due to any family connections. She had been brought up by foster families and had not kept in touch with them. New Zealand did not particularly feel like "home" to her. She had gone back there because she had been endeavouring to confront her own past and New Zealand “was where it all began".
Primary considerations in relation to revoking visa cancellation
Paragraph 13(2) of Direction 65 states:
In deciding whether to revoke the mandatory cancellation of a non-citizen's visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Protection of the Australian community
In relation to the "protection of the Australian community" as referenced in paragraph 13(2)(a) of Direction 65, further elaboration of relevant factors to be taken into account is provided by paragraph 13.1:
(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 noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen's conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Pursuant to paragraph 13.1(1), therefore, it is a requirement to take account of the importance of "protecting the Australian community from harm as a result of criminal activity or other serious conduct".

Pursuant to paragraph 13.1(2), the decision-maker must in this context take account of the nature and seriousness of the non-citizen's conduct to date and the risk to the Australian community should the individual re-offend.
Nature and seriousness of conduct to date
On the question of "the nature and seriousness of the non-citizen's conduct to date", paragraph 13.1.1(1) provides the following further guidance to the decision-maker:
In considering the nature and seriousness of the non-citizen'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)The sentence imposed by the courts for a crime or crimes;
(d)The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
(e)The cumulative effect of repeated offending;
(f)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour);
(h)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197 A of the Act
In this regard, the Respondent emphasised that the Applicant had been convicted of "violent crimes" and had received several sentences involving terms of imprisonment. He had an extensive criminal history and a pattern of reoffending.
It was contended on behalf of the Applicant that, with the exception of the single conviction for unlawful assault, the crimes in question were not of a violent nature and for the most part involved drug and property offences. He had been charged with possession of prohibited weapons but not with the use of those weapons.
The Tribunal agrees it is of some significance that the crimes were not (with one exception) of a violent nature; they were not of a sexual nature; had not been committed against vulnerable members of the community or against government representatives or officials; sentences imposed by the courts had been at the minimum end of the spectrum; there was no perceptible trend of increasing seriousness of the offences; and the Applicant's incarceration had been linked on more than one occasion to a non-custodial term, suggesting the courts were satisfied that there was a reasonable prospect of rehabilitation with appropriate treatment for his drug addiction.
The question of whether this pattern of conduct constitutes criminal behaviour of a "serious" nature for the purposes of paragraph 13.1.1(1)(a) is perhaps debateable. Any crime resulting in incarceration could on one analysis be regarded as "serious", although the use of the term "serious" in that specific paragraph is linked with the words "violent" and "sexual" and in that regard would seem to define them as belonging to a different genre of crime.
Conviction for assault is something which should, in the words of paragraph 13.1.1(1)(a), be "viewed very seriously". In mitigation, it might be observed that the Applicant's one conviction for a violent offence, involving assault was the consequence of a family matter in circumstances where the Applicant believed his sister had been mistreated by the victim. This does not in any way condone his actions but it does provide a context to an offence which was inconsistent with the nature of his other crimes.
The frequency of the Applicant's offences is relevant in the context of paragraph 13.1.1(1)(d). The particular circumstances must, however, be taken into account. The offences occurred over a relatively contained period against a background of drug addiction which had been brought on by family circumstances. Furthermore, relevant to paragraph 13.1.1(1)(d), there is no evidence of a "trend of increasing seriousness".
Paragraph 13.1.1(g) requires the decision maker to take into account any evidence that the non-citizen reoffended after being formally warned about the potential consequences to their immigration status. The Applicant falls into this category. His evidence regarding this was that when he received a Notice of Intention to Consider Cancellation from the Department in March 2013, he was at the time in custody. He accepted advice from fellow inmates that such letters were routine and could be ignored. Whilst this in no way justifies the Applicant's decision to ignore the warning, it may provide some indication that, whatever his faults and motivations, he was not necessarily acting in a cavalier manner as far as his visa status was concerned.
Clearly there are numerous factors which suggest that the Applicant has caused a degree of harm to the Australian community in the past and which, by virtue of paragraph 13.1.1(1), must be taken into account when considering the nature and seriousness of his past conduct. Nevertheless the ultimate question for the purposes of paragraph 13.1.1 is whether these factors are evidence of serious conduct which poses a threat to the Australian community such that his visa should remain revoked.
The Tribunal is unable to conclude, on the basis of the evidence of the witnesses before it (including the Applicant), and after taking account of the circumstances of his criminal conduct, that the Applicant is an individual who, by the nature and seriousness of his past conduct, is a person who poses an unacceptable risk to the Australian community. This conclusion takes account in particular that his crimes took place over a contained period when he was battling a drug addiction; the crimes were for the most part, to use his counsel's words, at the "lower end of the spectrum"; and the crimes for the most part did not involve personal confrontation. The conclusion also takes account of the Applicant's remorse and the question of whether he is likely to re-offend – this leading to a consideration of paragraph 13.1.2 of Direction 65.
Risk to Australian community in the event of re-offending
On the question of "the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct", paragraph 13.1.2 provides the following further guidance to the decision-maker:
13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1)In considering whether the non-citizen 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.
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
For the purposes of paragraph 13.1.2, therefore, it is necessary to take two principal considerations into account – effectively, the nature of potential harm to the Australian community if the non-citizen re-offends, and the likelihood of the non-citizen in fact re-offending.
Nature of harm if conduct repeated
At one level, the risk of any harm being caused to any individual in the Australian community is unacceptable. Paragraph 13.1.2, however, acknowledges that there are degrees of harm, noting that the tolerance of the Australian community inevitably becomes lower as the seriousness of the potential harm increases. Accepting the premise that that all crimes must cause some harm to the victims, it is implicit in paragraph 13.1.2 that some harm will be tolerated when assessing the overall risk to the Australian community.
Largely for the reasons given above, it is the Tribunal's view that if the Applicant re-offends, it would in all likelihood involve a relatively minor offence.
If one accepts that the Applicant's conviction for assault was an isolated and out-of-character incident, then it is likely that any relapse into his past criminal activity is unlikely to involve direct physical harm to individuals. It is relevant that the Applicant was arrested on one occasion in possession of a knuckle duster and it might well be the case that he intended to use that weapon if confronted in the course of carrying out a burglary. The Applicant denied that he intended to use the knuckle duster but he did not have a satisfactory explanation as to why it was in his possession at the time he was arrested. Nevertheless the fact remains that the Applicant's pattern of behaviour in the past would suggest that he sought to avoid physical confrontation and was not prone to wanton violence.
This assumes, of course, that the Applicant is likely to re-offend at all, which in turn gives rise to the considerations laid out in paragraph 13.1.2(2)(b).
Risk of individual re-offending
The Respondent argued that there was a strong likelihood of the Applicant reoffending, particularly when taking account of the fact that he had continued to commit criminal offences after receiving a Notice of Intention to Consider Cancellation sent by the Department on 20 March 2013.
In addition, whilst the Respondent acknowledged the Applicant's contention that he had rehabilitated whilst in prison and in detention, and that he had taken full responsibility for his actions, he had not yet been released back into the community and accordingly there had been no opportunity to test his rehabilitation claims. The likelihood of his reoffending therefore remained significant.
The Applicant's representative argued that the likelihood of reoffending was low. Whilst there had been numerous repeat offences in the past, they had essentially been linked to the Applicant's drug addiction which was now hopefully being successfully addressed.
The Applicant's counsel emphasised that many of the Applicant's sentences were ordered to be served by way of a drug treatment order. The purpose of a drug treatment order was to facilitate rehabilitation and to reduce the level of criminal activity associated with drug or alcohol dependency. The fact that drug treatment orders were made indicated that there was a perceived real prospect of rehabilitation by the court.
It was reiterated to the Tribunal that the Applicant had initially turned to drugs to deal with the shock of his mother leaving the family but now, following the return of his mother to Australia, he had a necessary support system in place. He had relocated to a different side of Melbourne, well away from his former drug connections. His experience in having his visa cancelled, and being detained on Christmas Island in readiness for deportation, had made him realise how desperately he wished to stay off drugs and to continue living in Australia with his family.
Against this background, the Tribunal considers there is a realistic prospect that the Applicant will not re-offend. He demonstrated considerable and, in the Tribunal's opinion, sincere remorse in giving his evidence. His circumstances have changed considerably from when he was offending, and there are strong grounds to assume that his motivation to engage in criminal conduct will have simultaneously abated.
There can of course be no guarantee that the Applicant will not re-offend, however there is every reason to conclude that there is a reasonable prospect that he will not do so. In any event, the threat of visa cancellation would remain a major deterrent.
Expectations of Australian community
Also of relevance as a primary consideration in a revocation request is paragraph 13.3 of Directive 65 which provides:
13.3 Expectations of the Australian community
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.
The Respondent contended that it would be contrary to the expectations of the Australian community for the Applicant to remain in Australia. Whilst the Principles in paragraph 6.3 of Direction No 65 indicated that a higher tolerance should be afforded to a non-citizen who had lived in the community for most of their life, or from a very young age, the Australian community would nevertheless expect non-citizens to obey the law.
It was contended by the Applicant's representative that, given the Applicant's offences were at a low level, the Australian community would be expected to tolerate this having regard to the Applicant's long and firm connections to Australia.
The Tribunal is inclined to agree with the Applicant's representative that Australian sentiment, whilst intolerant of criminal behaviour by non-citizens, would most likely favour giving the Applicant "another chance", and would be averse to separating him from his family and from the country in which he has lived since he was a young child.
Relevantly, the Tribunal considers that separating this young man from his family and leaving him with no alternative but to return to New Zealand where he would be a virtual stranger, would be inconsistent with the average expectation as to how a non-citizen should be treated.
In this regard, it is of particular significance that the Applicant was only 6 years of age when he came to Australia. Life in Australia is all that he has known. Separation from his family and removal from Australia would be a major setback to his personal recovery and in a great many respects a disproportionate measure of punishment for his past conduct.
In the Tribunal's view, the expectations of the Australian community would be that if an individual has lived in Australia since he was 6, and on all indications has the potential to rebuild his life in Australia surrounded by his family following a troubled start, he should be supported in his attempts, and his family's attempts, to give him a fresh start in this country.
Additional factors
Paragraph 14(1) empowers the decision-maker to take additional factors into account:
"(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Of the matters listed above, sub-paragraphs (b) and (e) warrant further consideration by the Tribunal.
Strength, nature and duration of ties
In relation to "strength, nature and duration of ties", paragraph 14.2 states:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(bThe strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Respondent acknowledged that the Applicant had resided in Australia for almost 20 years and that his immediate family (apart from his father) all resided in Australia. It was acknowledged there would be an "impact on family members" should the Applicant be deported but the Respondent noted that it would remain possible for the family to visit the Applicant in New Zealand. In any event, the Respondent contended that any emotional hardship on members of the family should not overshadow considerations weighing in favour of non-revocation.
It was contended on behalf of the Applicant on the other hand, that exclusion from Australia would be devastating for many of the Applicant's family members. Reference was made to article 23(1) of the International Covenant on Civil and Political Rights which recognised that "the family is the natural and fundamental group unit of society and is entitled to protection by society and the State".
Of significance to paragraph 14.2(1)(a)(i), it is relevant that the Applicant did not start offending "soon after arriving in Australia". He was only 6 years of age when he arrived in Australia. He had a happy and untroubled childhood and only lapsed into criminal behaviour after many years following the break-up of his family unit.
Of significance in the context of paragraph 14.2(1)(b), the fact is that a majority of the Applicant's immediate family are located in Australia. His mother is endeavouring to rebuild the family unit and is willing to relocate from Queensland to Victoria to be with her son if he is allowed to remain in Australia. The Applicant's brother is willing to accommodate him and employ him. The Applicant's father is in New Zealand but has indicated he will only accommodate the Applicant for two weeks if he has to relocate there. The Applicant has no other relatives known to him in New Zealand, bearing in mind that his mother was the product of foster homes and has no contact with her former foster parents.
In relation to the "extent of impediments if removed" as referred to in paragraph 14.1(1)(e), paragraph 14.5 elaborates as follows:
(1)The extent of any impediments that non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen's age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.

The Respondent emphasised that although the Applicant had resided in Australia since the age of 6 years, he had returned to New Zealand on 8 occasions between 1997 and 2010. Furthermore, although he did not have a close relationship with his father who resided in New Zealand, the father had nevertheless written a letter of support which the Respondent contended "suggests they have a strong and positive relationship".
The Applicant's representative contended that the Applicant "essentially knows no life other than life in Australia, and is not familiar with New Zealand". He regarded himself as an Australian for all intents and purposes and other than his father, his other 25 family members lived in Australia.
It may well be that the Applicant has a good relationship with his father, but the rest of his family remains in Australia. There is no evidence that the Applicant has friends or any form of social network in New Zealand. The evidence was that the Applicant's father would only accommodate him for two weeks, whereas the Applicant's brother in Melbourne had invited him to move in to his home to provide accommodation and support on a more prolonged basis.
The Respondent also emphasised that the Applicant had "some work experience" and this should assist him in obtaining employment in New Zealand. There was also generally no apparent impediment to his finding work in New Zealand. Any difficulty in re-establishing himself in New Zealand due to his long residence in Australia "would only present a short term hardship". The Tribunal takes account of this observation, but is also mindful that the Applicant has been guaranteed employment by his brother in Melbourne, and would not have to look for work if allowed to return to Australia.
Additional considerations
Paragraph 14 of Directive 65 contains a non-exclusive list of other considerations which may be taken into account. In other words, it is open to the Tribunal to consider other factors which may be relevant to the decision whether or not to revoke the cancellation of the visa.
It was emphasised on behalf of the Applicant in this regard that revocation would mean he was permanently excluded from ever being granted a visa to enter Australia again.
It was further submitted that the Tribunal should take account of the fact that the Applicant's sister was now pregnant with her first child and there was every prospect that the Applicant would wish to make a positive contribution to the life of his future niece or nephew.
The Applicant's representative also contended that the Applicant had served his sentences for the crimes he had committed, and that the cancellation of his visa would only serve to add to the punishment he had already endured.
Finally, it was emphasised on behalf of the Applicant that the bulk of the Applicant's family within Australia were supportive of him.
In the Tribunal's opinion, each of these additional factors provided added weight to its inclination to exercise its discretion to revoke the cancellation of his visa.
DECISION
For the reasons stated above, the Tribunal decides that it should exercise its discretion under section 501CA(4) of the Act to revoke the cancellation of the Applicant's visa.

1.

2.

3.       I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of:

Dr Gordon Hughes, Member

..............................[sgd]......................................
Associate
Dated 15 November 2016

Date of hearing

20 October 2016

Counsel for the Applicant Christopher Tran

Solicitors for the Applicant Fragomen

Advocate for the Respondent Adam Cunynghame

Solicitors for the Respondent Sparke Helmore

[2016] AATA 906

15 November 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Remedies

Statutory Construction

Division	GENERAL DIVISION
File Number	2016/3907
Re	Shaun Te Kanawa
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

Tribunal	Dr Gordon Hughes, Member
Date	15 November 2016
Place	Melbourne

Date of hearing	20 October 2016
Counsel for the Applicant	Christopher Tran
Solicitors for the Applicant	Fragomen
Advocate for the Respondent	Adam Cunynghame
Solicitors for the Respondent	Sparke Helmore