Tekotia Wiperi and Minister for Immigration and Citizenship
[2013] AATA 279
[2013] AATA 279
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0814
Re
Tekotia Wiperi
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Professor R Deutsch, Deputy President
Date 8 May 2013 Place Sydney The decision under review is affirmed
..........[sgd]..............................................................
Professor R Deutsch, Deputy President
CATCHWORDS
MIGRATION - Cancellation of visa - does not pass character test - substantial criminal record - multiple serious offences - imprisonment of 12 months or more - application of Direction 55 - primary considerations - other considerations - discretion not to cancel not exercised - decision affirmed
LEGISLATION
Migration Act 1958: ss499, 501
CASES
Goldie v Minister for Immigration Multicultural Affairs (2001) 111 FCR 378
Milne v Minister for Immigration and Citizenship (2010) FCR 495
Mordechai v Minister for Immigration and Citizenship (2011) 196 FCR 509
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234Uelese v Minister for Immigration and Citizenship (2013) FCA 342
SECONDARY MATERIALS
Direction no. 55 – Visa refusal and cancellation under s501
REASONS FOR DECISION
Professor R Deutsch, Deputy President
8 May 2013
The Applicant has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to cancel his visa on the ground that he does not pass the character test because of his substantial criminal record as defined in s501(7)(c) of the Migration Act 1958 (“the Migration Act”).
PRELIMINARY MATTER
At the outset of the hearing, the Tribunal was asked to determine what day was the first day of hearing in this matter. This issue is important in such matters given the provisions of s 501(6H) and (6J), referred to as the ‘two day business rule’. The provisions are as follows:
(6H) If:
(a)an application is made to the Tribunal for a review of the decision under section 501; and
(b)the decision relates to a person in the migration zone;
the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least two business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review.
(6J) If:
(a)an application is made to the Tribunal for a review of a decision under section 501; and
(b)the decision relates to a person in the migration zone;
the Tribunal must not have regard to any documents submitted in support of the person’s case unless a copy of the document was given to the Minister at least two business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. However, this does not apply to documents given to the person or Tribunal under subsection 501G(2) or subsection (6F) of this section.
On the hearing date of 16 April 2013, it became apparent that the Applicant did not have available to him proper legal representation. There was an expectation that the Applicant would be in a position to have representation at a later date. The Tribunal granted adjournments so as to allow the Applicant the opportunity to afford himself representation. It was not until 2 May 2013 that this representation was available and properly utilised.
Due to the protracted nature of the hearing, an issue arose as to whether evidence sought to be filed and relied on by the Applicant after the 16 April 2013 hearing date or, more appropriately, less than two clear business days before this hearing date, was able to be admitted.
The Respondent objected to the admission of any further evidence on the basis that the hearing had started on 16 April 2013. The Applicant submitted that the hearing started on 26 April 2013, at the very earliest. Legal argument from both parties with respect to their respective propositions was limited.
The Tribunal notes the strict view taken of the two day business rule in cases such as Goldie v Minister for Immigration Multicultural Affairs (2001) 111 FCR 378, Milne v Minister for Immigration and Citizenship (2010) FCR 495, Mordechai v Minister for Immigration and Citizenship (2011) 196 FCR 509 and Uelese v Minister for Immigration and Citizenship (2013) FCA 342. Of significance is the comment of Gray J in Goldie (with whom R D Nicolson and Stone JJ agreed) that:
‘Once the Tribunal began a hearing, the entitlement of the appellant to rely on information and documents crystallised. That entitlement was limited to information contained in a statement or statements given to the Minister, and to documents copies of which he had given to the Minister, at least two business days before the hearing began. The resumption of an adjourned hearing is not a new hearing.’
Accordingly, in the Tribunal’s view, and given the reasoning in Goldie, the hearing of this matter started on 16 April 2013 and, therefore, the Applicant’s entitlement to rely on particular evidence crystallised at that point. Accordingly, the evidence tendered within, or beyond, two business days of the first hearing date, being 16 April 2013, was deemed inadmissible.
BACKGROUND
The Applicant was born in New Zealand and is currently a New Zealand citizen. He is 35 years of age. He arrived in Australia at age 15 and has not departed since.
The Applicant’s father and brother both reside in Australia while his mother and three siblings reside in New Zealand. He does not have any children.
Previously, on 1 April 2008, the Minister’s delegate had determined not to cancel the Applicant’s visa and, instead, took the course of issuing the Applicant with a formal warning that future incidents would result in reconsideration of whether or not to cancel his visa.
Criminal History
The Applicant has an extensive criminal record. The details of his criminal activities committed while an adult in Australia are encapsulated in the Table below.
Date of offence/charge
Offence
Date of
Conviction
Result
08/09/1998
Possess prohibited drug
17/08/1998
*Convicted, fined $500
08/09/1999
Aggravated robbery
20/04/2001
*8 years imprisonment
03/11/1999
Aggravated robbery
20/04/2001
*8 years imprisonment
16/11/1999
Robbery while armed with offensive weapon
20/04/2001
*10 years imprisonment
19/11/1999
Robbery while armed with offensive weapon
20/04/2001
*10 years imprisonment
22/11/1999
Robbery while armed with offensive weapon
20/04/2001
*10 years imprisonment
07/12/1999
Aggravated robbery
20/04/2001
*8 years imprisonment
18/12/1999
Robbery while armed with offensive weapon
20/04/2001
*10 years imprisonment
20/12/1999
Aggravated robbery
20/04/2001
*8 years imprisonment
23/12/1999
Aggravated assault with intent to rob with wounding/grievous bodily harm
20/04/2001
*12 years imprisonment
26/12/1999
Robbery while armed with offensive weapon
20/04/2001
*10 years imprisonment
22/06/2000
Escape/attempt to escape from lawful custody
20/04/2001
*3 months imprisonment
20/04/2001
*Effective term of 13 years imprisonment (G7, 67) (non-parole period of eight years)
* There appears to have been 18 offences as an adult which were to be dealt with by the Central Local Court but were wrapped up into the sentencing at the Sydney District Court.
Criminal offences committed while in prison
27/05/2008
Supply prohibited drug
23/02/2012
6 years imprisonment (non-parole 3years)
The commencement of his criminal conduct predates his arrival in Australia. It appears from the various documents that his criminal activities commenced at an early age when he engaged in stealing and pickpocketing before he progressed into more substantial criminal activities.
His first offence in Australia was some five months after his arrival in this country.
Since then his offences have included theft, substance abuse, driving offences, assault, break and enter, breaches of judicial orders, escaping lawful custody and armed robbery.
The Applicant appears to have had a history of chronic poly-substance use and poly-substance dependence and has himself stated that his crimes were fuelled by drug addiction.
The Applicant has been incarcerated since 2001, having been convicted and sentenced to an effective term of 13 years imprisonment for 10 offences relating to armed robbery.
In addition, between 8 June 2008 and 11 June 2008 the Applicant knowingly took part in the supply of a prohibited drug while in prison.
Criminal conduct leading to 13 year imprisonment
The conduct which led to the Applicant’s most recent period of incarceration (a 13 year prison term) arose due to his involvement, to varying degree, in a number of serious offences between the period of 8 September and 26 December 1999. These offences were largely violent in nature, with one resulting in the Applicant stabbing someone in the back.
Criminal conduct while in prison
Since his incarceration in 2001, the Applicant has incurred 11 internal charges, including offences relating to assault against other inmates, illicit drug use and non-compliance.
Between 8 June 2008 and 11 June 2008, the Applicant knowingly took part in the supply of a prohibited drug namely methylamphetamine of a commercial quantity (approximately 836g) and cannabis leaf (approximately 6.68kg) while in prison. The Applicant used a mobile phone to relay messages between persons inside and outside of prison in order to coordinate the transaction and the supply of drugs.
In the extensive Sentencing Remarks of Zahra J dated 2 November 2011, the learned judge noted that:
‘A possible inference which cannot be excluded is that the offender primarily had possession of the phone for his own personal use and that his involvement here in a small number of calls relating to the supply of prohibited drugs was not pre-arranged.”
Further, the judge notes that:
‘Counsel for the offender submits that he did not intend to receive any reward for conveying the messages and his role was minimal.
Ultimately the offender is to be sentenced for what he did. The pursuit of a label which might attach to his position in the overall hierarchy may lead to error. The offenders roll in the offences here was important. He provided a link between the principal and other members of the syndicate. By relaying conversation he knowingly facilitated the negotiations for a substantial quantity of drug and assisted in coordinating the movement of the drug. He provided valuable aid to the principal in the enterprise here. However it could not be said that he provided or contributed any significant intelligence to the operation was being undertaken. Apart from relaying conversation nothing he said otherwise operated to propel or otherwise enhance the prospect of success of the ultimate supply.’
Zahra J concludes by sentencing the Applicant to a term of imprisonment of six years, three years and six months, being the relevant non-parole period.
Clearly there is some concern as to the level of involvement of the Applicant in the offence, and it appears that he was somewhat of a pawn in a much larger scheme over which he had little or no control.
Nonetheless, it is not for this Tribunal to seek to second-guess the sentencing judge. So much is apparent from the decision in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at para 40 where the court said that:
‘accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the tribunal.’
The simple fact of the matter is that Zahra J imposed a sentence which satisfies the statutory description of a sentence of imprisonment for a period of not less than one year. It also reflects the view that Zahra J viewed the Applicant’s involvement as a very serious matter worthy of a custodial sentence. This was so, even taking into account the Applicant’s minor role relative to the other players in the relevant crime.
Custodial sentences
In summary, the Applicant has been sentenced to the following custodial sentences:
·2 months imprisonment – sentence imposed on 29 January 1996;
·1 year, 8 months’ imprisonment – sentence imposed on 3 July 1996;
·13 years imprisonment served concurrently – sentence imposed on 20 April 2001; and
·6 years imprisonment – sentence imposed on 23 February 2012.
RELEVANT LAW AND POLICY
Subsection 501(2) of the Migration Act provides that the Minister may cancel a visa if ‘the Minister reasonably suspects that the person does not pass the character test’.
Relevantly paragraph 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’. A substantial criminal record is itself defined such that, if a person has been sentenced to a term of imprisonment of 12 months or more, they have a substantial criminal record.
As the Applicant has been sentenced to three sentences of imprisonment of 12 months or more, he clearly has a ‘substantial criminal record’ and therefore does not pass the character test under paragraph 501(6)(a) of the Migration Act.
However, embedded within s 501 is a discretion which the Minister can exercise to not cancel the relevant visa, even in circumstances where such a substantial criminal record has been found to exist.
In this case, the Minister has chosen not to exercise that discretion in favour of the Applicant, and it is the exercise of that discretion that is the subject of this review.
Under s 499(2A) of the Migration Act, in exercising the discretion conferred by s 501, the decision-maker is required to comply with the direction made under s 499. Direction Number 55 – Visa refusal and cancellation under s 501 of the Migration Act (‘Direction 55’). Direction 55 commenced to operate on 1 September 2012 and is therefore applicable in this case.
Thus, it is clear that in exercising the discretion, the decision-maker is clearly bound to follow Direction 55.
ORAL EVIDENCE
The Applicant gave oral evidence during the hearing. No further witnesses were called by either party to give evidence.
PRIMARY CONSIDERATIONS
Direction 55 sets out four primary considerations to be taken into account in deciding whether the Applicant’s visa should be cancelled namely:
(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-refoulment obligations to the person.
Primary Consideration 1 – Protection of the Australian Community from Criminal and Other Serious Conduct
In considering the protection of the Australian community from criminal or other serious conduct, paragraph 9.1 of Direction 55 states:
1When 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 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.
2Decision-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
The nature and seriousness of the conduct
Paragraph 9.1.1(1) of Direction 55 states:
1In 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 the 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 197 A Act;
(d) The principle that any conduct that forms the basis for a finding that a person does not pass the character test under S501(6)(b) or (d) , or is not of good character under S501(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.
Looking first to the wording of paragraph 9.1 (1) of Direction 55, it is worth noting that the Applicant is a non-citizen who has clearly failed to meet the expectation that he will be law-abiding, and has caused considerable harm to individuals on numerous occasions.
Looking to the factors listed as relevant in relation to determining the nature and seriousness of the conduct, and using the same lettering sequence as is used in paragraph 9.1.1(1) of Direction 55, the following observations are relevant:
(a)the Applicant has been charged and convicted in relation to a number of violent crimes which in many instances involved the use of firearms or other weapons – violent crimes are viewed very seriously;
(b)the crimes committed by the Applicant have not generally involved minors, the elderly or disabled or government representatives or officials. However, there have been incidents of an attack against a State law enforcement officer and an incident with respect to a Magistrate;
(c)no offences appear to have been committed by the Applicant while in immigration detention etc;
(d)this factor appears to be of no relevance since there are no findings based on the sections referred to;
(e)it is clear from the sentences imposed by the courts in relation to the offences committed by the Applicant that the courts view the offences very seriously. In relation to the series of offences which the Applicant committed during the spree that ran from September 1999 through to December 1999, the sentencing judge, Herron J noted the seriousness of the offences and commented that the total theoretical sentence to which the Applicant could be liable in respect of the matters was on his calculations 240 years. In doing so, he also emphasised that this calculation serves as a reminder as to the seriousness of the matters under consideration. He added that if all the offences which could be taken into account attracted the maximum available sentence theoretically that could add another 300 years to the 240 years already mentioned.
All this demonstrates the very serious nature of the matters involved.
The most serious incident was an armed robbery which took place on 23 December 1999 in which a man was seriously injured when he was stabbed by the Applicant in the back with a knife during an attempted robbery;
(f)since coming to Australia, the Applicant has offended and re-offended on a regular basis, and the trend has generally been towards crimes of increasing seriousness. The more recent crimes have involved drugs, robbery while armed, aggravated assault and aggravated robbery while earlier crimes appear to have generally involved break enter and steel, malicious damage and driving a conveyance without consent;
(g)the Applicant has engaged in frequent offending since arriving in Australia in 1993. The cumulative effect of the Applicant’s continuous offending is significant and he has caused significant harm, both physical and financial, to the Australian community.
(h)there is no evidence that the Applicant has provided false or misleading information in the manner contemplated.
(i)the Minister’s delegate issued the Applicant with a formal warning that future incidents would result in reconsideration of whether or not to cancel his visa and this warning was made on or around 1 April 2008. Since receiving a warning the Applicant has been involved in the supply of prohibited drugs for which he received a six-year term of imprisonment with a non-parole period of three years;
(j)the early offences in the Applicant’s history were committed in New Zealand but no detailed information as to the precise nature of those offences was provided. Accordingly this factor is not relevant.
Reviewing these factors, six of them weigh in favour of cancellation of the visa. The fact that the Applicant did not attempt to commit any crimes while in immigration detention and did not provide false or misleading information to the Department are in his favour and factors (d) and (j) above are largely irrelevant.
The risk to the Australian Community should the person commit further offences or engage in other serious conduct
Paragraph 9.1.2(1) states that in considering whether a person represents an unacceptable risk of harm:
… 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 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.
In assessing these matters, it is first important to recognise the serious nature of the Applicant’s offences a subject about which much has already been said.
If this conduct were to be repeated there would be incalculable harm to the Australian community and individuals within it.
Assessing the risk of recidivism is a complex matter but the following factors point to a real and significant risk that the Applicant will offend again in a similar way:
(a)the frequent nature of the Applicant’s offending while in the Australian community;
(b)the failure of the Applicant to properly and adequately respond to control orders, penalties, sentences and warnings;
(c)the Applicant’s continued offending while in prison;
(d)the Applicant’s seeming lack of regard to the interests of other members of the Australian community;
(e)the Applicant’s history of association with criminal elements;
(f)the Applicant’s limited attempts to achieve worthwhile rehabilitation;
(g)the Applicant’s history of unemployment while in Australia.
The Applicant’s conduct demonstrates a clear propensity to offend which commenced as a minor while in New Zealand and continued in Australia throughout his adult life for a period in excess of 20 years.
Various control orders, penalties and custodial sentences appear to have had no effect on deterring the Applicant from further offending, and it is noted that the Applicant committed the offences of armed robberies in 1999 after having served two previous custodial sentences. His involvement in a drug supply network commenced two months after receiving a formal warning from the Department of Immigration and Citizenship.
The Applicant’s conduct while in prison over the past 12 months demonstrates that his offensive conduct has not been deterred by his imprisonment.
He was placed in a special unit known as the Security Threat Group Intervention Program (STG-IP) in April 2005, largely as a result of his involvement with a violent and aggressive group who are involved in race wars in prison. He remained in high-level segregation from 2005 virtually until his release from prison.
The Applicant reports to have abstained from substance abuse since converting to Islam in 2006. Urinalysis and toxicology reports provided to the Tribunal by the Minister demonstrate that the Applicant has returned negative results in the previous few years. The Applicant’s personal abstinence, however, does not appear to have prevented him from being involved in a drug supply network while in prison. His involvement in these matters demonstrates that there is a real risk of the Applicant reoffending in the future.
The Applicant has a lifelong history of being associated with criminal elements. In a psychologist report dated 16 February 2012 it was noted that the Applicant moved to Australia due to his association with criminal activities in New Zealand. Despite this, the Applicant again associated himself with criminal elements in the Australian community, and his involvement in gangs while in custody suggests that he has continued to associate himself with people of negative influence. This history of associating with negative peer influences since early childhood strongly suggests that the Applicant will again associate himself with similar people if released into the Australian community and they will provide a negative influence on him.
The Applicant has a significant history of criminal offending which commenced as a minor and, in part, at least the Applicant’s offending has been linked to his history of substance abuse. The psychologist’s report of 16 February 2012 identified ‘the potential for relapse into substance abuse as a specific risk for his future recidivism upon release from custody… .’ Further, an Immigration Report dated 28 December 2012 states that the Applicant ‘presents as possibly being overconfident in his belief that he will not relapse and that during rehabilitation sessions a level of resistance is detected.’
As noted previously, the Applicant’s intentions to abstain from substance abuse has not prevented him from being involved in criminal offending in the past.
There is some evidence of attempts to engage in programs that assist in rehabilitation and the Tribunal notes in this context in particular that, to his credit, the Applicant has been involved in programs such as Drug Education and Awareness, Relapse Prevention and Controlling Anger and Learning to Manage it (‘CALM’). While not directly related to rehabilitation in the sense referred to above, it is also worth noting that the Applicant has been involved in a number of TAFE courses and adult education courses in numeracy and mathematics. These are worthwhile programs that speak well of the Applicant’s desire to rehabilitate but in the circumstances, and having regard to the Applicant’s troubled history, they are hardly convincing in satisfying the Tribunal that genuine attempts at rehabilitation have been undertaken
Conclusion on Primary Consideration 1
The Tribunal thus concludes that this primary consideration supports the Minister’s decision to cancel the relevant visa.
In reaching this conclusion, the Tribunal notes, in particular, the Applicant’s very extensive criminal history, the serious and increasingly serious nature of the offences committed over an extensive period of time and the failure of the Applicant to take any serious measures to rehabilitate.
Primary Consideration 2 – Strength, Duration and Nature of the Person’s Ties to Australia
With regard to the strength, duration and nature of the Applicant’s ties to Australia, paragraph 9.2 (1) states that 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
(iii)Or 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.
The Applicant arrived in Australia on the 20 April 1993, aged 15. He committed his first offence of ‘demanding money with menace’ in September 1993 and has continued to commit offences of an increasingly serious nature since then. The Applicant has attended Juvenile Justice facilities since the age of 15 and he has been out of custody for only about 12 months since the age of 15.
The Applicant has not been employed in Australia and has developed no serious working relationships of a legitimate nature.
It appears that while the Applicant’s father resides in Australia, the Applicant has had virtually no contact with him since the age of 10. An Immigration Report dated 12 March 2012 also indicates that the Applicant has had limited family visits while in prison.
The Applicant has a girlfriend in Australia who he has been in a relationship with for three weeks. In a written reference from his girlfriend, she claims to have had a longer relationship with the Applicant. This was contradicted by the Applicant in his oral evidence. In any event, the relationship has been of a short-term nature and does not weigh strongly in favour of the Applicant having a strong tie to Australia.
There were references provided in support of the Applicant. These included references from people stating they had known the Applicant for some time, a chaplain offering spiritual guidance, an offer of housing and an offer of employment. None of these people were called to give oral evidence. The Tribunal gives little weight to these limited statements.
Conclusion on Primary Consideration 2
Having regard to the above, the Tribunal concludes that this primary consideration weighs in favour of cancellation of the Applicant’s visa.
In reaching this conclusion, the Tribunal has paid particularly close attention to the fact that the Applicant has few legitimate ties to non-criminal elements in Australia and virtually no contact with his immediate family in Australia.
Primary Consideration 3 – Best interests of minor children in Australia
Direction 55 requires the Tribunal to consider the best interests of minor children in Australia and how they might be affected by the decision. This could apply to any minor children of the Applicant himself or any other minor children who may be affected by the decision being made.
In this case, there are no relevant minors whose best interests must be taken into account.
Primary Consideration 4 – whether Australia has international non-refoulement obligations to the person
There are no relevant international obligations for the Tribunal to consider in this case.
Conclusions on Primary Considerations 3 and 4
The Tribunal concludes that these primary considerations are not relevant in this case.
OTHER CONSIDERATIONS
Paragraph 10 of Direction 55 provides a non-exhaustive list of other considerations which must be taken into account where relevant. However, sub-paragraph 8(4) states that primary considerations should generally be given greater weight than the other considerations.
The relevant other considerations are:
(a)the 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)any impact on Australian business interests;
(c)the impact of a decision not to cancel on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim 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 a person’s age and health, whether there are substantial language or cultural barriers; any social, medical and/or economic support available to them in that country.
In the Applicant’s case, the effect of cancellation on his immediate family in Australia is minimal since the Applicant does not have any noticeable contact with the two members of his immediate family who are in Australia, namely his father and his brother. Neither the Applicant’s father nor brother provided statements in his support.
The impact on any Australian business interests appears to be irrelevant to the Applicant’s circumstances.
No evidence was tendered as to the impact of a decision not to cancel the visa would have on victims of the Applicant’s criminal behaviour and the family members of those victims, but the impact on members of the Australian community generally would be great in that they would be exposed to the significant risks of the Applicant re-offending.
The Tribunal notes that, in this context, the majority of the Applicant’s family including his mother and three siblings reside in New Zealand. The Tribunal also notes that the country to which the Applicant would be returned, namely New Zealand, is a country which has comparable social, economic and cultural conditions as exist in Australia and also has a well-developed social welfare benefits system which the Applicant may well be eligible to access.
Thus, the Tribunal accepts that the Applicant is not faced with any greater impediments in establishing himself in New Zealand than he would face in re-establishing himself in Australia.
Finally, the Applicant gave oral evidence about an event in which he seemed to provide protection to a law enforcement officer during the course of an incident whilst in prison. The Respondent challenged the significance of this factor as it appears that it subsequently turned into an assault against other officers. This incident was referred to in the Case Note Reports provided to the Tribunal by the Minister. The information contained in the report is limited and while it accords with the information provided by both parties about the event, it provides little assistance. In the circumstances I give this little weight.
Conclusions on Other Considerations
The Tribunal is of the view that the other considerations weigh in favour of cancellation of the Applicant’s visa.
CONCLUSION
The Tribunal is of the view that Primary Consideration 1 and 2 and all the other considerations support the Minister’s decision to cancel the Applicant’s visa. Primary considerations 3 and 4 are, in the circumstances, not relevant.
DECISION
The decision under review is affirmed.
I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Professor R Deutsch, Deputy President ........[sgd]................................................................
Associate
Dated 8 May 2013
Date(s) of hearing 16 and 26 April; 2 May 2013 Solicitors for the Applicant Mr Ali Abbas, AHA Lawyers;
Mr Martin Churchill, Churchill LawyersSolicitors for the Respondent
Ms Stephanie Wende, Sparke Helmore
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