The Applicant and Minister for Immigration and Citizenship

[2013] AATA 300

[2013] AATA 300 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/0838
Re	The Applicant
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	Ms J L Redfern, Senior Member
Date	14 May 2013
Place	Sydney

The decision under review is affirmed.

.............[Sgd]...........................................................

Ms J L Redfern, Senior Member

CATCHWORDS

MIGRATION AND CITIZENSHIP – visa cancellation – character test –criminal history involving violence – seriousness of conduct and risk of future harm – protection of Australian community and criminal offending soon after arrival outweighing all other factors – decision under review affirmed.

LEGISLATION

Migration Act 1958 (Cth) ss 499, 500, 501

Migration Regulations 1994

CASES

Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318

Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493
re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81

Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390

SECONDARY MATERIALS

Direction [no. 55] – Visa refusal and cancellation under s 501

Explanatory Memorandum, Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998

REASONS FOR DECISION

Ms J L Redfern, Senior Member

14 May 2013

1. The Applicant is a 21 year-old New Zealand citizen of Samoan cultural heritage.  He moved to Australia with his mother and two sisters on 12 April 2007 when he was 15 years old. He was granted a Class TY Subclass 444 Special Category (Temporary) visa, which allows the holder to remain in Australia indefinitely while he was a New Zealand citizen. The Applicant’s father moved to Australia later in that year. The Applicant has resided in Australia since his arrival. His parents and three sisters also reside in Australia.

2. On 11 June 2009, the Applicant pleaded guilty to an offence of robbery committed on 26 July 2008 in circumstances of aggravation, namely that the victim was wounded. The Applicant was a juvenile at the time the offence was committed. There was dispute about aspects of the Crown case, which was resolved by the sentencing judge in the District Court, Judge English. The Applicant was convicted of aggravated robbery with wounding and was sentenced on 4 February 2010 to imprisonment for five years, 11 months and 12 days, with a non-parole period of three years and two months. On 9 March 2013 he was released on parole into immigration detention at Villawood Immigration Detention Centre. 

3. On 16 July 2012, a delegate of the Minister for Immigration and Citizenship (the Minister) made a decision to cancel the Applicant’s visa. The Applicant was notified of the decision by letter dated 17 July 2012 but was renotified of the decision by letter dated 14 February 2013. The Applicant seeks a review of the decision of 16 July 2012.

4. The Minister has discretion to cancel a visa if the Applicant does not satisfy the character test set out in the Migration Act 1958 (Cth) (the Migration Act). The Applicant does not satisfy this character test because of his criminal history and the issue for determination is how the discretion should be exercised in the circumstances of this case. If the Applicant’s visa is cancelled, he will be removed to New Zealand.

   LEGAL FRAMEWORK

5. Section 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”. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record. “Substantial criminal record” is defined in section 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more. The Applicant has been sentenced to a term of imprisonment for a period of 12 months or more and, as such, has a substantial criminal record. He therefore does not pass the character test and the discretion under section 501(2) is enlivened.

6. Section 499(1) of the Migration Act provides that “the Minister may give written directions to a person or body having functions or powers under this Act” about the performance of those functions and the exercise of those powers. The decision-maker, including the Tribunal, must comply with the written directions (section 499(2A)).

7. The Minister has delegated the exercise of the discretion under section 501(2) and from time to time has issued written directions under section 499(1) of the Migration Act to decision-makers about the matters to be taken into consideration when reaching a decision to refuse or cancel a visa. At the time the delegate made the decision to cancel the Applicant’s visa, the relevant direction in operation, which commenced on 15 June 2009, was Direction [no. 41] – Visa refusal and cancellation under section 501 (Direction no. 41). On 28 July 2012, the Minister issued a new direction, Direction no. 55 – Visa refusal and cancellation under s 501 (Direction no. 55), which came into effect on 1 September 2012. Given that my decision is after this date, the relevant direction to consider is Direction no. 55, rather than Direction no. 41.

8. Direction no. 55 states 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” (cl 6.2(1)). It also sets out six principles “of critical importance in furthering that objective”, which are stated to “reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable” (cl 6.2(1)). These principles must inform the exercise of the discretion and involve a balancing exercise (cl 7(1)). The principles are as follows:

   6.3 Principles

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

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

   (3)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

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

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

   (6)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

9. Clause 8 provides guidance about the decision-making process. Decision-makers must have regard to the primary and other considerations as set out in Direction no. 55 and information and evidence from independent and authoritative sources should be given “appropriate weight”. The primary considerations should generally be given greater weight than the other considerations and one or more of the primary considerations may outweigh other primary considerations. Both primary and other considerations may weigh in favour of, or against, cancellation.

10. There are four primary considerations, two of which are relevant to this case, being: protection of the Australian community from criminal or other serious conduct and the strength, duration and nature of the person’s ties to Australia. There is no evidence, nor were there any submissions by or on behalf of the Applicant, that the other two primary considerations of the best interests of minor children in Australia and international non-refoulement obligations are relevant to his case.

11. The other considerations include, but are not limited to, the effect of cancellation on the person’s immediate family in Australia, the impact on Australian business interests, the impact of a decision not to cancel a visa on members of the Australian community (including victims of the person’s criminal behaviour and family members of the victims) and the extent of any impediments the person may face if removed from Australia.

12. Before consideration is given to these factors in light of the Applicant’s circumstances, I note that a number of procedural issues arose during the course of the hearing which were material to the conduct of the hearing of this matter.  As such, it is appropriate to refer to the legislative provisions relevant to these matters by way of background.

13. Section 500(1) of the Migration Act provides for applications to be made to the Tribunal for the review of decisions to cancel a visa made under section 501(2). Section 500 of the Migration Act includes a number of provisions, being those set out in subsections 500(6A) to (6L), that are designed to expedite the determination of applications for review. Subsection (6L) provides that if the Tribunal has not made its decision within 84 days after the day on which the person affected by the delegate’s decision was notified of it, the Tribunal is taken to have affirmed the decision under review. Subsections (6A) to (6L) were inserted into the Migration Act by the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Migration Act 1998 (No. 2) (Cth).  According to the Explanatory Memorandum, Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1998, the amendments “balance the Government’s concern to expedite review of character decisions against the need to ensure that the AAT has relevant information and sufficient time to properly review a particular decision to refuse to grant or to cancel a visa on the basis of a person’s character” and “are also intended to ensure that the review process is not used as a mechanism to prolong stay in Australia by people whose visa has been refused or cancelled”.

14. In addition, subs sections 500(6H) and (6J) limit the information that the Tribunal may have regard to when considering applications for review under section 501 of the Migration Act. Section 500(6H) provides that “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 2 business days before the Tribunal holds a hearing”. Section 500(6J) provides that “the Tribunal must not have regard to any document submitted in support of the person’s case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing”.

15. The Full Federal Court in Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318 considered these provisions and at [25], Gray J (with whom RD Nicholson and Stone JJ agreed) observed as follows:

    The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant's case unless the Minister has had two business day’ notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No. 2) (Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the 84 day time limit for the whole process, laid down in subs (6L).

16. Thus, the procedures for applications for review of visa cancellations are different from the procedures for other matters before the Tribunal and are designed to ensure these visa matters can be determined within the overall time limit fixed by subsection 500(6L).   

    PRELIMINARY ISSUES AND CONDUCT OF THE HEARING

17. At the commencement of the hearing, the Applicant's uncle requested that he represent the Applicant during the hearing. He also sought an adjournment. After seeking the views of the Applicant, who supported both applications, I allowed the Applicant’s uncle to make representations on these matters. The Applicant’s uncle stated that he proposed the adjournment to give the Applicant the opportunity to obtain legal representation in respect of the application for review and to obtain advice about appealing the Applicant's original conviction. He said that the Applicant had received inappropriate advice in relation to the conviction and this matter needed to be reviewed.

18. The legal representative for the Minister, Ms Stone, opposed the adjournment on the basis that there was evidence legal aid had already been refused. She also submitted that the Tribunal could not go behind the original conviction and, given the strict provisions of section 500 (6L) of the Migration Act, there would be little opportunity for the Applicant to pursue this matter in any event. On her calculation, the Tribunal would need to make a decision in the matter on or before 16 May 2013 to ensure there was no deemed affirmation.

19. According to Ms Stone, the notification letter was posted on about 14 February 2013. Under regulation 2.55 of the Migration Regulations 1994, when a notice is served by prepaid post, the person is taken to have received the document within 7 working days after the date of the document. As such, service was deemed to have occurred on 25 February 2013, being the first working day after the 7 working day deemed service period. Based on this, any decision of the Tribunal must be made on a before 20 May 2013. I also note that the application for review was dated  21 February 2013 and as such, it can be inferred that the Applicant received the application by at least this date. If so, I must make a decision by at least 16 May 2013 otherwise the decision of the Minister to cancel the Applicant’s visa will be taken to have been affirmed.

20. Given these matters, I advised the parties that I would be unlikely to consider an adjournment for more than a week to 10 days. So that I could assess the utility of an adjournment, I requested that the Applicant give evidence to clarify certain matters on the question of legal representation. The Applicant said that he had been notified about two or three weeks ago by legal aid that his application had been refused. After receiving this advice he spoke to his uncle but no other lawyer had been identified to take on the case at this point of time. The Applicant’s uncle questioned him about this issue and, in particular, on the question of whether the Applicant understood the legal aid forms. The Applicant’s uncle submitted that it was unfair that he had not been granted legal aid and this decision was wrong but agreed there was little to no prospect of finding a legal representative within the next week.

21. There was also little to no prospect of any appeal against the Applicant’s conviction being resolved within the next few weeks - even if leave to appeal was given. It would not be the Applicant is best interests to adjourn the proceedings beyond 16 May 2013, thereby effectively depriving him of the opportunity to challenge the decision, and I formed the view that there was no arguable utility or benefit in granting even a short adjournment. I therefore declined to adjourn the hearing. 

22. I also formed the view that it would not be in the Applicant’s best interests to allow his uncle to represent him during the hearing and was unlikely to assist me in reviewing the decision to cancel the Applicant’s visa.

23. The Applicant’s uncle argued about a number of issues that were not relevant to the application (including his view that the Applicant was wrongly convicted) and demonstrated little understanding of the relevant matters for consideration before the Tribunal. Furthermore, the Applicant’s uncle had been given copies of the documents served by the Minister by the Applicant but did not bring any of these documents to the hearing. This was surprising and had the potential to place the Applicant at a disadvantage. The Applicant was therefore provided with the Tribunal copies and the Minister later provided replacement copies for the Tribunal. Of particular concern was the Applicant’s uncle’s early questioning of the Applicant when he sought to influence the Applicant’s evidence about the issue of legal aid. After asking the Applicant a question about the legal aid application, his uncle interrupted him giving his evidence and said to the Tribunal that was clear that the Applicant did not understand the question. This was not the case. It was clear that the Applicant understood the question, which was straightforward, and was simply thinking about the question before responding.

24. I concluded thatthe Applicant’s uncle's questioning and interruptions were likely to inhibit the Applicant in giving his evidence and in the conduct of the case and therefore decided against allowing the Applicant’s uncle leave to represent him. However, I gave the Applicant’s uncle the opportunity to make submissions at the end of the hearing but he advised he was not available on the second day. I therefore allowed the Applicant’s uncle the opportunity to make oral representations at the end of the first day and to provide any written submissions by the close of business on the day after the hearing. The Applicant’s uncle did not provide any submissions. The Applicant otherwise represented himself in the proceedings.

25. Another issue that was raised at the commencement of the hearing was that the Applicant sought to tender two further documents in support of his case that had not been served upon the Minister at least two business days before the hearing. These documents comprised a character reference in support of the Applicant’s application from a member of his church and a letter from a medical practitioner about his parents’ illnesses. Given the provisions of section 500(6J) of the Migration Act, I could not have regard to these documents and therefore rejected their tender.

    THE EVIDENCE

1. The evidence was contained in the documents served by the Minister pursuant to section 500(6F) of the Migration Act in addition to information in documents obtained from New South Wales Department of Corrective Services about the Applicant’s criminal history and his time in prison. In addition to his own statement, the Applicant relied on statements from his mother, father, sister, fiancée, cousin, a family friend, and three people who knew him before his incarceration through his involvement with the Assembly of God - Church of Samoa in Australia. The Applicant’s father, sister, fiancée and cousin also gave oral evidence in relation to the matters raised in their statements and were cross examined. The Applicant also gave oral evidence and was questioned about his family, his links to New Zealand and his conduct and associations while incarcerated.

2. The Applicant first arrived in Australia in April 2007 with his mother and two older sisters, His father moved to Australia in late 2007. One of his sisters has returned to New Zealand. The Applicant is the youngest of 10 children. One of his elder brothers has died and his parents look after his children, a niece, who is about 17 years old and a nephew, who was about 12 years old. His five brothers live in New Zealand and three of his sisters are living in Australia. The Applicant went to school in western Sydney and completed Years 10, 11 and most of Year 12. According to the Applicant, his parents moved to Australia to get away from problems in New Zealand. A number of the Applicant’s brothers were involved in gangs, as was the Applicant before he left New Zealand.

3. The Applicant was 15 years old when he arrived in Australia and after about seven or eight months he formed a gang known as the “FBI” gang, being an acronym for “Full Blooded Islanders”. This was the same name of the gang in New Zealand of which he and his brothers were members. The members of the Australian FBI gang were local boys who went to his school. There were eight people in the gang. In 2007 and 2008, the Applicant had the “FBI” initials tattooed on his body.

4. There is evidence the Applicant and his family were active members of the Assembly of God - Church of Samoa in Australia and that he was involved in a youth group within the Church. The Applicant met his fiancée through the Church in 2008. According to the Applicant, none of the members of the Church were members of his gang. The Applicant provided references from various members of the Church to the effect that the Applicant had been involved with the Church, contributed to the youth work of the Church and was well regarded.

5. On 26 July 2008, the Applicant committed an offence, in the company of other members of the FBI gang, against a 14-year-old boy in the presence of his 11-year-old brother. As previously noted, the Applicant pleaded guilty to the offence in June 2009 but he disputed the Crown's case about the circumstances. Judge English heard evidence on this issue and found the Crown case was established. In summary, she found that two teenage brothers, aged 14 and 11, were returning home at night from a football game when the Applicant and three other members of his gang who were driving nearby stopped the car. The Applicant and one of the other members of the gang exited the car and approached the older boy. They asked for money and when he replied that he had no money, both the Applicant and his co-accused punched and kicked the youth repeatedly as well as stomping on his head. According to her Honour, the older brother suffered a deep 10 cm wound to the right side of his head and further severe lacerations and swelling to his entire face. He lost consciousness and during the assault, the boy’s jacket, his Nike running shoes and wristwatch were stolen. The Applicant was interviewed at the police station about a month after the incident and denied any involvement. Other members of the gang were also interviewed and gave a version of events to the police, implicating the Applicant. At the sentencing hearing, those gang members sought to distance themselves from the version of events given to police at the earlier records of interview.

6. Judge English revoked the Applicant’s bail at the end of the sentencing hearing because of concerns about the safety of others and, in particular, two of the gang members who were witnesses at the hearing. She stated as follows, when referring to the evidence of the witnesses and the Applicant’s role and demeanour:

   I find that they [the witnesses] have been intimidated or persuaded not to confirm the contents of those early interviews because of the detriment to this offender. This offender did himself not (sic) favours by his behaviour in the dock or in the witness box. His demeanour and behaviour can best be described as arrogant in the extreme.

   He comes before this court as a young person facing a very serious criminal charge who has not shown one iota of remorse or contrition despite what others might say. I find this was a premeditated assault upon an innocent young boy to prove he was still “King C”. It was instigated by him, it was his blow to the victims jaw which fell (sic) the victim.

7. In sentencing the Applicant, Judge English commented in strong terms as follows:

   In the most recent Juvenile Justice report, which was made available for this sentence today, the officer as a consequence of speaking with the offender was of the opinion that the offence was “financially motivated”. If his evidence of (sic) oath is to be accepted nothing could be further from the truth. From that report it is clear he still has simply no understanding of the seriousness of the offence he has committed or the condemnation in which he is held by this court and no doubt the community at large.

   It is simply extraordinary that he describes his offending behaviour as “a waste of time” and “not worth being in custody”. That shows a complete lack of incite (sic) on his part and a total lack of genuine remorse or contrition. It demonstrates someone who considers being placed into custody an inconvenience rather than a punishment for the crime committed, a very very serious crime. A crime that attracts a maximum penalty of twenty-five years imprisonment one of the most serious crimes in the calendar.

   Her Honour Justice Syme found as I do that the offence was committed in company which is of course a factor of aggravation. I find that the victim was vulnerable having regard to his age and that he was making his way home late at night following the football match. She also found as I do that the offence was committed in the presence of a child. The victim's younger brother was present. There was also another boy present but he had ridden off on his bicycle.

   Whilst her Honour found that intoxication played a part in the offence committed by [xxx] I do not make such a finding in respect of this offender. Intoxication played no part in his decision to commit this unwarranted, violent and sustained assault upon this vulnerable young victim. This was an act of premeditated unwarranted violence not fuelled in any way by alcohol on the part of this offender.

   Her Honour went on to say:

   His [Applicant’s] prospects for rehabilitation will largely depend upon him developing insight into his offending behaviour and demonstrate (sic) a willingness to continue with his education, obtain employment and choose better friends. Only time will tell whether he can lead a law-abiding life and become a worthwhile citizen. His arrogance and belligerence in this court do not bode well for his rehabilitation. He is of course still relatively young and rehabilitation remains of paramount consideration. He is being dealt with at law due to the serious nature of the crime committed by him.

8. The Applicant was sentenced to a total term of imprisonment of five years, 11 months and 12 days with a non-parole period of three years and two months. This sentence, including a number of her Honour’s findings on which the sentence was based, was appealed to the Court of Criminal Appeal. The appeal was dismissed. The Applicant did not appeal his conviction and did not seek to deny the findings of Judge English in these proceedings, unlike his uncle, but rather sought to explain his demeanour and why he did not appear to be remorseful.

9. The Applicant commenced his incarceration in juvenile detention but was transferred, at his request, to an adult correctional centre in about March 2010. As noted in the case management notes produced by the New South Wales Department of Corrective Services, the Applicant requested the transfer because he was concerned that juvenile detention was “not strict enough”.

10. While he was in prison, the Applicant was punished in respect of eight misconduct charges as follows:

2/07/2010	failure to comply with a Correctional Centre routine
5/09/2010	enter other cells
5/09/2010	disobey direction
5/09/2011	intimidation
2/11/2011	damage, destroy, deface cell
29/04/2012	intimidation
29/04/2012	failure to comply with Correctional Centre routine
7/01/2013	fail prescribed urine test

1. It should be noted that in respect of the last charge, the Applicant was retested and the results of this testing showed that “NIL” prescribed substances were present. As such, no further action was taken in this matter, however, the original punishment imposed, and the Applicant’s dispute about punishment, resulted in further allegations of misconduct, the detail of which is referred to later in these reasons.

2. There were other instances of misconduct charges alleged but in some cases the Applicant was either not punished or was given a warning. He completed various courses while incarcerated, including his transport “Blue Card”, occupational health and safety and work health and safety courses, a first aid course, a “White Card” construction industry course and various drug and alcohol and anger management programs. He also completed the Positive Lifestyle program, dealing with stress management, assertiveness, self-esteem, grief and conflict resolution and the “Gurnang Life Challenge” program, which was a four-month program that he undertook while he was in Oberon Correctional Centre. He continued his bible studies while in gaol and this was corroborated by a number of certificates recording his successful completion of Christian instruction and bible study courses.

3. The Applicant said that he was a changed man and was no longer associated with gangs. According to the Applicant there was no risk of him reoffending and the fact that he had not breached bail demonstrated that he was able to live in the community. He was now more mature, he was remorseful for his crimes, even though the sentencing judge did not find him to be so, and he wanted the opportunity to live in the community to look after his parents and to marry his fiancée and long-standing girlfriend, who is an Australian citizen. The Applicant denied that he was not remorseful and said that one of his difficulties was that he smiled when he was uncomfortable and at inappropriate times. This was not intentional and there is evidence that the Applicant sought counselling for this in late 2012 because of the perception of others that he had the wrong attitude. I also observed the Applicant to be smiling on occasion during the hearing but my impression was that he was nervous rather than belligerent or arrogant.

4. The Applicant was cross examined in respect of entries contained in the New South Wales Department of Corrective Services records referring to his continued association with gangs and misconduct charges where he had allegedly reacted abusively. The Applicant denied he had any association with gangs or that he had been aggressive or intimidatory while incarcerated, other than when provoked. Given the relevance of these matters to the Applicant’s risk of reoffending, it is useful to examine each of the incidents and entries and the Applicant’s response to each.

5. The Applicant requested a transfer to an adult gaol in March 2010. Ms Julie Telfer, Acting State Coordinator, Young Offenders from the Department of Corrective Services, assessed this request. In her e-mail dated 22 March 2010, Ms Telfer extracted comments from other officers about the Applicant’s security assessment. Her email noted responses from Juvenile Justice Officers to the effect that the Applicant “had issues with anybody associated with or in 884 in Campbelltown” and it “seems that due to [the Applicant] being ranked fairly highly (his statement) in FBI he has issues with other gangs”.

6. In addition to this, a Detainee Movement Form from the Department of Corrective Services dated 22 March 2010 recorded a number of alerts, of which the following is an example:

   Not to mix with […] Gang related issues. Detainees confined for fighting. […] FBI […] 884. Suspected community issues.  

7. The Applicant denied that he had any association with gangs after this time and said that his association with gangs was confined to his time in juvenile detention. Relevantly, the records from the Department of Corrective Services do not refer to any gang related problems or fighting between inmates involving the Applicant after this time.

8. One of the key concerns raised by the Minister was the Applicant’s aggression while he was incarcerated. There were a number of examples referred to in the Department of Corrective Services case notes. The Applicant was cross-examined about each and agreed with the description recorded in respect of all incidents, with the exception of an incident which was said to have occurred on 29 September 2012. He otherwise sought to explain his actions in respect of a number of others. The details of these incidents is summarised below.

   (a)On 5 September 2010, the Applicant was directed to move cells. He refused to do so and was abusive to staff but later reportedly apologised. He was subsequently charged with two misconduct offences and was punished.

   (b)On 1 July 2011, it was noted that staff conducted a monthly search of the Applicant’s cell but he was recorded as having attempted to “intimidate staff”. The Applicant was warned but not punished in respect of this conduct.

   (c)Just over two weeks later, on 17 July 2011, the Applicant became aggressive and pushed a staff member when asked to clear the wing. The Applicant needed to be restrained by his cousin and the case notes recorded that the Applicant had “issues with anger management”. The Applicant agreed that the case note correctly recorded the incident but he said that he had been provoked by the staff member who had called him a “petty thief”, which was an insult. He was not subsequently punished for this offence and said that he would not react in this way now.

   (d)On 1 September 2011 the Applicant was recorded as using abusive language to officers who were attempting to separate inmates involved in a fight. The Applicant was subsequently charged and punished for this incident by having to spend two days in his cell. The Applicant agreed that this incident had occurred and said that he had pleaded guilty. He provided no explanation for the conduct.

   (e)On the 2 November 2011, the Applicant was charged with damaging his cell. According to the report, the back window of the Applicant’s cell was broken and he was directed to pay compensation. The Applicant agreed that the window was broken but denied that this was deliberate. He said this was an accident that occurred while he was mopping his cell. There was no record of such an explanation being given to officers by the Applicant.

   (f)On 28 April 2012, after being told that he had been sacked as the unit sweeper, the Applicant “hurled abuse” at the staff member and kicked several boxes in the vicinity, causing one of the boxes to be damaged. The Applicant agreed with the description set out in the case notes and while he said that his behaviour was not acceptable, he also said that he reacted angrily because he believed he was being victimised. The Applicant was punished by being confined to his cell for seven days. After this incident, the Applicant said that he complained to the Ombudsman and wrote to the Governor of Goulburn Correctional Centre.

   (g)According to the case notes of 29 September 2012, the Applicant was asked to stop talking on the phone and he was reported to have said “I hope one of your family die”. The Applicant denied making these comments, although he could not give any explanation as to why the officer would have recorded such a specific quotation in her notes. The Applicant was not punished for this reported misconduct nor is it recorded that he was charged with an offence.

   (h)On 23 November 2012 the case notes record that the Applicant became angry about an incident and reportedly kicked a barbecue gas bottle into the wall and slammed the officers landing door upon exit causing it to smash. He was told to return to his cell but refused. It is noted that a misconduct report was submitted but it does not appear that any punishment was imposed. The Applicant agreed with the description of the incident and said that he was given a warning.

   (i)On 29 November 2012 it was recorded in the case notes that the Applicant said words to the effect that he would bash anyone else that goes into the ‘next one out cell’. The Applicant agrees that he said this but explained this was said out of anger because of concern that he was constantly being, in his view, unfairly treated.

   (j)The last misconduct recorded while the Applicant was incarcerated arose out of a urine test which he reportedly failed. The Applicant was retested and this returned a negative result but in the meantime the Applicant was given non-contact visits and he became abusive and upset. He was confined to his cell for 24 hours.

9. The Applicant did not agree that he had been aggressive while in gaol and said that he would not be aggressive in the future - he had learned from his mistakes.

10. The Applicant’s parents provided a statement requesting that the Applicant be allowed to stay in Australia. According to the Applicant’s parents, they were both ill and needed more assistance around the house to support their needs and care, particularly now that their daughter was working full time. The Applicant’s father said that there was little contact with his other children in New Zealand. He no longer had a close relationship with those children because they were “not listening”. It would be very difficult for the Applicant’s parents if their son was forced to return to New Zealand and he considered it unlikely that the Applicant’s brothers or other members of the family would assist his son to establish himself in New Zealand. The Applicant’s father said that if his son’s visa was cancelled, he and his wife would have to consider whether they would return to New Zealand with their son. While his son had not been able to assist them financially before gaol and while he was incarcerated, they were hopeful that he may be able to contribute once he was able to obtain employment. If he could not obtain employment, his father and mother would benefit from his assistance around the house. At the moment the only person who assists is their grandson, who is only 12 years old. The Applicant’s father “begged” the Tribunal to give his son a second chance and would clearly be very upset if the Applicant, who is still considered the baby of the family, was to be deported.

11. The Applicant’s sister supported her brother’s application and said that she believed her brother had been in the “wrong place at the wrong time”. The Applicant’s sister attended the sentence hearing but was not convinced about his guilt. She said that if her brother was forced to return to New Zealand, she would not return because there was nothing for her there. She built a new life in Australia but would be very upset if he was forced to leave. Notwithstanding the evidence of the Applicant’s father, his sister did not believe that her parents would return to New Zealand.

1. The Applicant’s fiancée said that she had met the Applicant in about 2008. They became engaged last year when he was at Nowra. There were planning to get married before the Applicant went into gaol and if he was released from immigration detention and allowed to stay in Australia, they would marry. She's been an Australian citizen since about 2004. All of her immediate family lived in Australia. The Applicant’s fiancée returned to New Zealand in 2010 for a short period because her parents did not approve of her relationship with the Applicant. If he was forced to return to New Zealand, she would not return because most of her adult life had been spent in Australian and there was nothing for her in New Zealand. The Applicant’s fiancée was asked whether this would end her relationship with the Applicant. She responded that she did not believe this would be so but it would cause real problems as she did not believe she could return to New Zealand.

2. The Applicant’s cousin provided a short written statement and gave evidence by telephone. He moved to Australia over 20 years ago, had a small timber flooring business and employed staff. He was prepared to offer the Applicant employment in his business. He did not know the Applicant well but had met him about three times at family functions.

   SUBMISSIONS OF THE PARTIES

3. The Applicant agreed he was convicted of a serious offence but says he is not a violent person and he is remorseful. He was young when he committed the offence, which was his first, and is a changed man. He was charged in August 2008 and was released on bail, until his bail was revoked in December 2009. According to the Applicant, and the records appear to confirm this, he did not breach bail during this period. This demonstrated that he could live in the community without offending. He was not a risk; otherwise he would not have been released on parole. The Applicant’s parents lived in Australia. They needed him and he needed them, there was nothing for him in New Zealand and he wanted the opportunity to be given a second chance. The Applicant submitted that these matters should be taken into account by the Tribunal and his visa should therefore not be cancelled. The Applicant’s uncle submitted that the Applicant should not have been convicted, it was his only conviction and it would be a burden for him to return to New Zealand when his close family members and fiancée were in Australia. Any behaviour issues while he was in gaol were provoked by correctional officers. The Applicant should be given a second chance and should not be punished twice.

4. The Minister contended that the protection of the Australian community weighed heavily in favour of cancelling the Applicant’s visa. The Minister accepted that the Applicant has lived in Australia for a number of years but contended that there was no evidence he had made a positive contribution during this period. He had formed a gang soon after arriving in Australia and commenced offending within 15 months. Evidence about the Applicant’s ties to Australia and the fact that he had commenced offending so soon after arriving in Australia weighed against him. The only other considerations that were relevant was the impact of cancellation on immediate family members in Australia and other Australian citizens or permanent residents and the question of whether the Applicant would face any impediment if he were to return to New Zealand. The Minister accepted that cancellation of the Applicant’s visa would have a negative impact on both these factors but this impact did not outweigh the primary considerations, which were in favour of cancellation.     

   PRIMARY CONSIDERATIONS

   Protection of the Australian community

5. Clause 9.1(1) of Direction no. 55 provides that decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm. It is further stated that:

   Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

6. In considering the protection of the Australian community, regard must be had to the nature and seriousness of the conduct and the risk to the Australian community should the person commit further offences or engage in other serious conduct (cl 9.1(2)).

7. Any conduct that forms the basis of a finding that a person does not pass the character test is considered to be serious (cl 9.1.1(1)(d)). Regard must be given to the sentence imposed, the frequency of the person’s offending and whether there is any trend of increasing seriousness and the cumulative effect of repeated offending (cl 9.1.1(1)(e) – (g)). Violent and/or sexual crimes are viewed very seriously (cl 9.1.1(1)(a)) and crimes committed against vulnerable members of the community (such as minors) are serious (cl 9.1.1(1)(b)).

8. In considering whether a person represents an unacceptable risk of harm to the Australian community, decision-makers should have regard to the principle that tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases (cl 9.1.2(1)). Clause 9.1.2 provides that 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 information and evidence on the risk of the person re-offending and evidence of rehabilitation achieved by the time of the decision, giving weight to time in the community since their most recent offence.

9. The circumstances giving rise to the Applicant’s conviction and sentencing were the subject of a contested hearing before Judge English. Findings were made based on her Honour’s assessment of the evidence and Judge English imposed a sentence of nearly six years, with three years and two months non-parole taking into account these matters. While the Applicant did not himself dispute his conviction or sentence, the Applicant’s uncle did and his sister’s evidence suggested that she also doubted the basis for her brother’s sentencing. I cannot go behind the conviction and sentence (refer Minister for Immigration and Citizenship v Obele [2010] FCA 1445) and accept the findings of Judge English as an accurate account of the nature and extent of the Applicant’s criminal offending.

10. The Applicant’s criminal conduct was serious. It was violent, random and unprovoked and was perpetrated on a minor in the presence of his younger brother. The victim was beaten unconscious and robbed. He suffered a deep wound and lacerations to his face. According to Judge English, the attack was not motivated by financial gain or alcohol and was an “unwarranted, violent and sustained assault” on a “vulnerable young victim”. Judge English also found that the Applicant was the leader of the gang involved in the attack and expressed concern that two of the gang members who gave evidence at the Applicant’s sentencing hearing were “intimidated or persuaded not to confirm the contents of early interviews to the police”.

11. The sentencing remarks and findings of Judge English present a serious case of criminal offending that is at odds with the Applicant's assertion, and those of his family, fiancée and character references, that he is not violent. The Applicant was young at the time he committed the offence, he had just turned 17 years old. This was his first offence and, according to Judge English, the Applicant was attempting to prove himself. However, there was no explanation for the nature and extent of the violence perpetrated on the young victim. The Applicant is from a large family of 10 children and while there is evidence that he was involved in the gang under the influence of his older brothers at a young age, there is no history of family abuse or violence. His parents have been involved in the Church of Samoa in Australia for many years, as was the Applicant prior to his incarceration.

12. In summary, the Applicant's criminal conduct was not only serious but was violent in its nature and caused considerable harm to a vulnerable member of the Australian community.

13. The further matter to consider is the risk to the Australian community if the Applicant were to commit further offences or to engage in other serious conduct.

14. The Applicant says he is a changed man. Friends, relatives and his fiancée also attest to the belief that the Applicant has changed and should be given a “second chance”. The Applicant provided evidence that he had completed a number of courses while in gaol to address his offending behaviour and to give him employment and other life skills. The Applicant also said he is no longer involved in gangs and contends that the fact he was released on parole at the earliest opportunity is evidence authorities do not consider him a risk to the Australian community. After pleading guilty, the Applicant was released on bail and he did not breach his bail conditions. The Applicant says that this proves he is able to live in the community.

15. I accept that the Applicant has undertaken a number of courses to improve his skills and I note that he has an offer of employment from his cousin. I also accept that the Applicant’s friends, family and fiancée believe he has changed and would not be at risk of reoffending once he has been released on parole. However, there is no objective evidence to corroborate this. There is no report from parole officers or correctional centre authorities about these matters. The Applicant has not been tested in the community and even though he did not breach bail after pleading guilty, it is relevant to note that his bail conditions imposed a strict curfew which was likely to facilitate compliance. The Applicant has been released, albeit into immigration detention, but he has been released subject to supervised parole. The fact he has been released does not establish that authorities have concluded there was no risk he will reoffend. Indeed, Judge English noted as follows,

    A lengthier than normal period of supervised parole hopefully will enhance his prospects for rehabilitation but at this stage I certainly maintain doubts.

16. The Minister contended that there was evidence the Applicant was still involved in gangs, which heightened the risk of him reoffending. There is evidence that the Applicant was in a gang while living in New Zealand, formed a gang seven or eight months after arriving in Australia, was the leader of this gang and maintained his connections with and commitment to the gang until at least March 2010. There is no evidence of the Applicant having maintained these associations since that time but neither is there evidence that he has not. The Applicant has been involved in gangs in Australia for at least three years and possibly longer in New Zealand. This has been the case, notwithstanding his family support, the support of his fiancée and his involvement with the Church of Samoa in Australia. Having regard to these matters, I am satisfied there is a risk the Applicant may become reassociated with his old friends who were members of the FBI gang, and thereby fall back into antisocial behaviour.

17. Furthermore, the nature of the Applicant’s misconduct charges and/or the reports of his conduct while he was incarcerated in adult gaol are of particular concern. Between September 2010 and as recently as 29 November 2012, the Applicant is recorded on numerous occasions as having abused staff, damaged properly and reacted angrily when given directions. The Applicant was charged with and punished for ‘intimidation’ on two occasions: once in September 2011 and then in April 2012.  The Applicant did not dispute the conduct evidenced by the records of the Department of Corrective Services, with the exception of one incident, but sought to explain some of his actions as a response to victimisation or provocation by correctional centre staff. The Minister’s representative contended that this demonstrated the Applicant considered his actions were justified. While I do not accept that the evidence goes this far, indeed there is evidence the Applicant often later apologised for his behaviour, these incidents evidence serious anger management problems. When faced with authority or a decision he does not like, the Applicant has shown a propensity to react with aggression. Relevantly, this occurred on three occasions after the Applicant had been given notice by the Department of Immigration and Citizenship of the intention to cancel his visa on 4 May 2012. As submitted by the Minister's representative, this demonstrated a lack of regard or understanding of the importance of the concerns raised in that letter. I accept this submission.

18. One of the issues raised by Judge English and the Minister’s representative was the apparent lack of remorse shown by the Applicant at the sentencing hearing. The Applicant said that he was remorseful but Judge English found otherwise and was influenced by what she referred to as the Applicant’s demeanour in Court describing him as “an arrogant and belligerent young man who seemed all too pleased with himself and prepared to boast about his conquest as he saw it”. While I accept that the Applicant may have presented somewhat inconsistently at the sentencing hearing because of a lack of maturity, Judge English had ample opportunity to assess the Applicant during the hearing and she made a finding about intimidation of witnesses, which is serious. Her Honour’s views on these matters, and the Applicant’s prospects for rehabilitation, should therefore be given considerable weight. 

19. The Minister submitted that the risk the Applicant will reoffend is high. Based on the available evidence, I am satisfied that there is, at the very least, a real risk the Applicant will reoffend in the future. A ‘real risk’ of recidivism is one which is not far-fetched or fanciful and can include a low or minimal risk: Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 40 FCR 493.

20. Given this risk, the issue for consideration is whether the nature of the risk is “unacceptable”. As noted in cl 9.1.2(1) of Direction no.55, “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”. In this case, the risk of harm is significant because of the nature of the Applicant’s previous offending. His offending was violent, unwarranted and was committed against a vulnerable member of the community. His victim suffered significant physical injuries. There were no factors raised in mitigation or explanation at the sentencing hearing. If the Applicant were to reoffend along similar lines, the potential for harm would be significant and the Australian community would be less tolerant of any risk of future harm. This is recognised in clause 9.1.2(1) of Direction no.55 and in the following comments of Davies J in re Stone and Minister for Immigration and Ethnic Affairs (1981) 23 ALN 81 which are apt:

    The seriousness of the crime is an important consideration.  The more serious the offence the greater the affront there has been to the community and the greater the necessity there is to preclude recidivism. 

    The nature of the offence is of particular significance in the case of an immigrant who, in substance, seeks to remain in Australia so as to become fully absorbed into the Australian community.  Yet, by the nature of his crime, he may have placed himself among the class of persons whom Australia will not accept for entry.  The community may prefer to deport the criminal because he no longer meets the criteria which the community, having a choice as to who will and who will not become members of its community, has laid down for entry to Australia. 

21. Having regard to these matters, I find that the consideration of the protection of the Australian community weighs heavily in favour of cancelling the Applicant’s visa.

    Strength, duration and nature of ties to Australia

22. Clause 9.2 of Direction no. 55 provides that when exercising the discretion under s 501 of the Migration Act, decision-makers must have regard to:

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

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

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

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

23. As noted in the cl 6.3 principles, “a higher level of tolerance” of criminal or other serious conduct may be afforded in relation to a non-citizen who has lived in the Australian community for most of their life or from a very young age. The length of time a non-citizen has been making a “positive contribution to the Australian community” and the consequences of a visa cancellation on minor children and immediate family members in Australia are also relevant considerations.

24. The Applicant was a teenager when he arrived in Australia but spent most of his formative years in New Zealand. He has lived in Australia for nearly six years but has spent more than half of this time in juvenile detention, adult gaol or immigration detention. He formed a gang within months of arriving and committed a very serious criminal offence within 15 months. There is some evidence that he contributed to the community through his youth work with the Church of Samoa but this is more than outweighed by the fact that he commenced offending so soon after his arrival. This weighs in favour of cancellation (Rares J in Rosson v Minister for Immigration and Citizenship (2011) 191 FCR 390).

25. I accept that the Applicant has strong ties to his fiancée, who is an Australian citizen, and that this relationship has been a longstanding relationship that has apparently survived his long period of incarceration. I also accept that the Applicant has strong links with his parents and sister, who have an indefinite right to remain in Australia. In contrast, there is no evidence of significant social or employment links to Australia. The Applicant has never worked, he was previously in a gang and his contribution to youth work and the Church of Samoa in Australia was limited at best to a few years from the time of his arrival in Australia until the time of his incarceration in December 2009.

26. According to cl 8(3) of Direction no.55, both primary and other considerations may weigh in favour of, or against, refusal or cancellation of a visa. On balance, I find that this consideration weighs in favour of cancellation, or the least, is neutral. The Applicant’s ties to Australia are not extensive because of the time he has spent incarcerated but those ties are strong, given the close relationship he has to his parents, sister and fiancée. It is nonetheless arguable that the Applicant’s offending so soon after arriving in Australia, the negative impact of this on the Australian community and the length of his incarceration, offsets those ties to Australia from his personal relationships.           

    Best interests of minor children in Australia affected by the decision

27. Direction no. 55 requires that the decision-maker determine whether visa cancellation is or is not in the best interests of a relevant child or children under 18 years old (cl 9.3(1)-(2)). Clause 9.3(4) lists a number of factors that must be considered where relevant. As previously noted, there were no submissions made about this consideration. There was evidence that the Applicant has a niece and nephew who live with his parents and presumably lived with him until his incarceration. There is no evidence about the nature of the relationship between the Applicant and his niece and nephew and no evidence that their best interests would be affected by the cancellation of the Applicant’s visa. This consideration is referred to for completeness, given there is evidence of the existence of minor children who have previously been involved in the Applicant’s life, but I find that this consideration does not weigh against cancellation.

    OTHER CONSIDERATIONS

1. Clause 10 of the Direction provides a non-exhaustive list of “other considerations” that must be taken into account, if relevant. There are four considerations listed, of which two are said to be relevant to the Applicant.

2. The first non-primary consideration listed in cl 10 is the effect of cancellation 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 (cl 10(1)(a)). I find that the cancellation of the Applicant’ visa and his removal to New Zealand would have a significant impact on his fiancée. She is an Australian citizen, she has lived in Australia since at least 2004 and her immediate family are here. The Applicant’s fiancée said she could not accompany the Applicant to New Zealand because there was “nothing for her there”. It was suggested that the relationship between the Applicant and his fiancée was not sufficiently strong for her to agree to move but she disagreed and said the relationship would continue but it would be difficult. To expect an Australian citizen, who has lived in Australia since their early teens, to move to another country (even if it is their country of birth) is a momentous event. This is particularly so when the evidence of the Applicant’s fiancée is that her immediate family live in Australia and her friends and work are in Australia. While she believes the relationship can continue, albeit remotely, there can be no dispute that this matter weighs against cancellation.

3. Similarly, there is evidence that the Applicant’s parents and sister will be very upset if he is forced to return to Australia. I also accept that if the Applicant was to remain in Australia he may be able to assist them, although I note they have functioned with the support of others for the past three and half years without the Applicant’s assistance. There was conflict in the evidence about whether the Applicant’s parents would return to New Zealand with him, but either way I accept that the impact on the Applicant’s immediate family in Australia weighs against cancellation.        

4. The Minister contended that the only other non-primary consideration that was relevant to the Applicant’s case was the fourth matter set out in cl 10(1)(d), namely 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. There are no significant impediments to the Applicant in returning to New Zealand given that the basic living standards between New Zealand and Australia are similar, there are no language or cultural barriers and the Applicant is still a young man and in good health. I accept that the Applicant will not have the support of his parents but he does have family in New Zealand, he was educated in New Zealand and spent his formative years there. On balance, this factor does not weigh against cancellation of the Applicant’s visa.

   CONCLUSION

5. The Applicant’s strong ties to his family and his fiancée and the negative impact the cancellation of his visa (and consequential return to New Zealand) is likely to have on his immediate family and fiancée tends to weigh against cancellation. In contrast, the protection of the Australian community weighs heavily in favour of cancellation. This is a primary consideration and under cl 8(4) such a consideration should generally be given greater weight than the other considerations. It should also be noted that one or more primary considerations may outweigh other primary considerations (cl 8(5)). Given the seriousness of the Applicant’s criminal offending, the potential risk of harm to the Australian community, the fact the Applicant committed his offending so soon after arriving in Australia and has spent more than half his timing living in Australia in gaol or detention, I find that these considerations outweigh the other matters that are in his favour.

6. The Applicant submitted that he had already been punished for his crime and he should not be punished again. Cancellation of a non-citizen’s visa is not intended as a punishment. As noted in cl 6.3 of Direction no. 55, remaining in Australia is a privilege conferred on non-citizens in the expectation they are, have been and will be law abiding. The Applicant has abused this privilege. Relevantly, cl 6.3(2) provides that a non-citizen who has committed a serious crime of a violent nature against vulnerable members of the community “should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia”.

7. Weighing all the relevant considerations in this matter I therefore conclude that the correct and preferable decision is that the decision of the delegate should be affirmed.

81.       I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Ms J L Redfern, Senior Member.

.................[Sgd]..................................

Associate

Dated:  14 May 2013

Dates of hearing	29 and 30 April 2013
Applicant	In person
Solicitor for the Respondent	Ms M Stone, DLA Piper Australia