THHT and Minister for Immigration and Citizenship
[2013] AATA 175
•27 March 2013
[2013] AATA 175
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/0323
Re
THHT
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Deputy President J W Constance
Date 27 March 2013 Place Melbourne
The reviewable decision, being the decision of the Minister for Immigration and Citizenship made 15 January 2013 to cancel the applicant's Class TY Subclass 444 Special Category (Temporary) is set aside.
In substitution it is decided that in accordance with the provisions of subsection 501(2) of the Migration Act 1958 (Cth) the discretion to cancel the applicant's Class TY Subclass 444 Special Category (Temporary) visa is not exercised.
....................[sgd].............................................
Deputy President J W Constance
CATCHWORDS
CITIZENSHIP AND IMMIGRATION – cancellation of Class TY Subclass 444 Special Category (Temporary) visa – Direction [no. 55] – Visa cancellation under s 501 Migration Act 1958 (Cth) – character test – substantial criminal record – primary considerations – protection of Australian community from criminal or other serious conduct – nature and seriousness of the conduct – risk to the Australian community should the conduct be repeated – strength, duration and nature of ties to Australia – best interests of minors in Australia - other considerations – impact on members of the Australian community, victim’s family and friends – decision under review set aside.
LEGISLATION
Migration Act 1958 (Cth) ss 499(1), 499(2A), 500, 501(2), 501(6), 501(7).
SECONDARY MATERIALS
Direction no. 55 – Visa refusal and cancellation under s501
REASONS FOR DECISION
Deputy President J W Constance
Mr M first entered Australia in 2001. He is the holder of a Class TY Subclass 444 Special Category (Temporary) visa.
In 2008, when he was 18 years old, Mr M was convicted of manslaughter and of robbery. He was sentenced to three years detention in a Youth Justice Centre.
In January 2013 the Minister cancelled Mr M's visa as he suspected that Mr M did not pass the character test set out in section 501 of the Migration Act 1958 (Cth) and as Mr M did not satisfy him that he did pass the test.
Mr M has applied to the Tribunal to review the Minister’s decision.
For the reasons which follow the decision of the Minister will be set aside.
FACTUAL BACKGROUND
Unless otherwise stated the following findings of fact are based on the evidence of Mr M.
Mr M was born in New Zealand in 1990. He is a citizen of New Zealand.
Mr M migrated to Australia with his family in 2000 and has resided in Australia since that time.
On 22 January 2008 Mr M, in company with seven others, assaulted and robbed the late Dr Cao. When sentencing Mr M (referred to as MBA) and one other in respect of these crimes, Harper J described the assault and robbery as follows:
5 The events leading up to it began earlier on that Tuesday, 22 January. Each of you, and six others, had agreed to meet. Some of you, including you, MBA, wanted to find someone to bash and rob. You might not have initiated the plan, but you went along with it. … Certainly, however, neither of you made any attempt of consequence to dissuade your colleagues from carrying out their scheme. You both agreed to be part of a gang the aim of which was clearly and seriously criminal. You did not want or expect that anyone would die as a result of what you were about to do. But you did expect to find a victim who would be robbed, and robbery involves the use of force, or at least the threat of it. You were prepared to be involved in that.
6 A number of cars made up a convoy of you and your mates. You drove to the intersection of Kinnear and Eldridge Streets in Footscray. All but one member of the group got out. You saw Dr Cao, who was walking home from after a day’s work at the University. You followed him for a while until you, MBA, and one of your friends, deliberately took a different route so that you could, in effect, run around Dr Cao and attack him from the front while the others moved in from the rear. This action demonstrated your level of commitment to a plan of attack. Your involvement, MBA, was, I find, greater at this stage than that of you, WH. I take that into account in determining your individual sentences.
7 By this manoeuvre, MBA, you achieved your objective. You approached Dr Cao, and punched him twice to the face. You, WH, having come from behind your victim, pushed him. Others continued the assault with further punches.
8 All this was bad enough. You ought easily to be able to imagine how frightening the experience must have been for Dr Cao. After all, you, MBA, were so disturbed by what happened to him that you declined active participation in the events which followed.
9…Dr Cao was grabbed, and then flung to the ground in such a way that his head hit the pavement. As he lay there, another member of the gang kicked him in the head. Someone else removed his wallet and his phone. Either the fall, or the kick or kicks, or both, caused the injuries from which Dr Cao died some four days later. It is not suggested that either of you were physically and directly involved in the kicking, or in removing the wallet or the phone. But you were there. And you were there because you had knowingly joined in an evil enterprise to assault and rob. …
10 Having left Dr Cao dying on the footpath, you all drove to the McDonald’s restaurant at Sunshine. A majority of you, including you, WH, decided to try another robbery. …
11 … And although you must have known that you had abandoned Dr Cao after badly injuring him, you did not know that he was going to die from those injuries. On the other hand, two members of the pack – David Flynn and James Diblasi – had the courage to resist that peer pressure and go home from McDonald’s; and you, MBA, were so concerned about the violence inflicted on Dr Cao that, while you joined the others in the search for the next victim, you took no further part in the events of the night. …
12 I appreciate, however, that each of the two who left to go home had his own car, so to that extent it was easier for them. You had to rely on others for your transport. You had witnessed the violence of which some of those others were capable. I am prepared to accept that fear for yourself had an effect on your decision to continue with them.[1]
[1] Exhibit A1 p.28-29.
Conviction and Judge’s Sentencing Remarks
In the Supreme Court of Victoria Mr M pleaded guilty to one count of manslaughter and one count of robbery. On the charge of manslaughter Mr M was sentenced to three years’ detention. On the charge of robbery he was sentenced to two months detention to be served concurrently with that for manslaughter. His Honour directed that a period of 330 days, during which Mr M had been held in detention prior to sentence, be counted as already having been served as part of the sentence.[2]
[2] Exhibit A1 p.31.
His Honour made the following remarks concerning Mr M:
16… Before 22 January, you both faced a future of promise. Neither of you had before then been in trouble with the police. You both came from supportive homes. Your relations with your parents have suffered the usual strains of adolescence, but otherwise have been good. You have no history of drug abuse. You continue to be supported by your families following the events that bring you here. You are both intelligent. You both have the capacity to engage in satisfying careers that will enable you to draw on your abilities and that will benefit you, your families and the community.
17…In several hours of mad, senseless criminality you did great harm not only to your victims but also to yourselves.
18 It seems that both of you recognise this. As a result, you have suffered from depression and remorse since you gave yourselves up. … I am satisfied that you have both demonstrated genuine remorse. …
19 There may be a related danger. It is that feelings of worthlessness will become overwhelming. That would be destructive of yourselves, and perhaps of others. And it would be wrong, because you are not worthless. The hope remains that, despite the evil that you did this one night, you will nevertheless lead satisfying lives, and at the same time contribute positively to the community. Each of you has the intelligence and character to make that happen. …
20 I will now speak about each of you in turn. MBA, you were born on 19 July 1990, and are 18 years and four months old. … You have been in detention for almost a year. During this period, you have demonstrated a capacity to make the right choices. Staff at the Melbourne Youth Justice Centre describe you as a model client. You have displayed no behavioural issues, but rather have been extremely compliant and respectful. You have engaged appropriately with staff and other detainees. …
…
22 Your hope is that, like your father, you will become a motor mechanic. Consistently with this, last year you successfully commenced studying for your Victorian Certificate of Applied Learning at Copperfield College. In 2007, you participated in a Student Leadership Training Program Workshop, concentrating on connecting with less confident students and on achieving worthwhile goals in youthful relationships. … Similarly, you were awarded a Bronze Certificate from the SCOPE Young Ambassador’s Program. This seeks to create awareness of the problems of the disabled. …
23 You have worked part-time not only with your father, but also with Hungry Jack’s and McDonald’s. In March 2007 you were “crew member of the month” at Hungry Jack’s, and in May that year you completed the “working effectively in a retail environment” component of Certificate 3, Retail Operations with the Hungry Jack’s Registered Training Organisation. You have shown a capacity to apply yourself at both work and study. This has continued through the past year, despite your incarceration, as is shown by the six certificates of achievement or satisfactory completion that have been awarded to you in the past eleven months. Your desire is to complete year 12 and then, eventually, to carry on your father’s business. This is a commendable ambition. You must not again put it at risk.
…
25 … In particular, having received a pre-sentence report about you, I believe that there are better than reasonable prospects for your rehabilitation.[3]
[3] Exhibit A1 pp.30-31.
I will refer to further findings of fact in considering particular issues in these reasons.
THE RELEVANT LEGISLATION
Subsection 501(2) of the Migration Act 1958 (Cth) provides:
(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
Subsection 501(6) paragraph (a) provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7));
Subsection 501(7) paragraph (c) provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more;
The power of the Tribunal to review the decision to cancel Mr M’s visa is provided by Section 500. Under subsection 499(1) the Minister has given written directions (Direction [55] which commenced on 1 September 2012) as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with.
THE CHARACTER TEST
As Mr M was sentenced to detention for three years he has a substantial criminal record in accordance with subsection 501(7) of the Act. As a result, in accordance with subsection 501(6) he does not pass the character test and I must consider whether the Tribunal should exercise the discretion to cancel his visa.
DIRECTION [55]
Under the heading General Guidance, Direction [55] provides in part:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion to cancel a visa should be approached. The principles include the following:
(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.
The Direction requires the decision-maker (in this case the Tribunal) to take into account the primary and other considerations relevant to the individual case.[4] Primary considerations should generally be given greater weight than the other considerations.[5]
[4] Direction 55, paragraphs 6.2(3) and 8(1).
[5] Direction 55, paragraph 8(4).
Paragraph 9(1) provides:
In deciding whether to cancel a person’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The strength, duration and nature of the person’s ties to Australia;
c)The best interests of minor children in Australia;
d)Whether Australia has international non-refoulement obligations to the person.
REASONING
Primary consideration (a) – protection of the Australian community from criminal or other serious conduct
I note that I must have regard to matters set out in paragraph 9.1 being:
·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;
·the nature and seriousness of the person’s conduct to date;
·the risk to the Australian community should the person commit further offences or engages in other serious conduct[6].
[6] ‘Serious conduct’ is defined to include conduct which may not constitute a criminal offence.
The nature and seriousness of Mr M’s conduct to date
There can be no doubt that Mr M’s conduct in offending was extremely serious. His conduct contributed to the death of Dr Cao, who clearly had no opportunity to escape or defend himself. I take into account that it was Mr M who, in company with another of the gang, deliberately positioned himself in front of Dr Cao and struck him twice in the face, thereby putting him at the mercy of those who subsequently joined in the ongoing assaults.
Harper J observed that Mr M did not want or expect that anyone would die as a result of the plan to bash and rob someone. I do not consider that this reduces the seriousness of Mr M’s conduct. Had Mr M given any consideration to the well-being of Dr Cao before he attacked him he should have realized that his assault on him could have resulted in the tragedy which followed.
This consideration weighs very heavily in favour of the cancellation of Mr M’s visa.
The risk to the Australian community should the person commit further offences or engage in other serious conduct
Paragraph 9.1.2(1) provides guidance in considering the risk to the Australian community and requires the Tribunal have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
b)The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the person re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to the Australian community should Mr M engage in further criminal and/or serious conduct of the nature of that in which he has engaged in the past, would be extremely serious. At the very least it would result in physical injury to others. At worst it would result in the death of an innocent victim or innocent victims. In addition it would increase the fear of members of the community for their own safety when they were in public places. This in turn would limit the ability of members of the community to enjoy the freedoms which they are entitled to enjoy, free of the risk of being physically injured and robbed.
As to the likelihood of his engaging in further criminal conduct or other serious conduct, I have taken into account the evidence of Mr M that he is remorseful for the harm he has caused and that he will not engage in criminal conduct again. I take into account also that Harper J was satisfied that Mr M had demonstrated genuine remorse at the time he was sentenced and that, having received a pre-sentence report, he believed Mr M’s prospects of rehabilitation were better than reasonable.[7]
[7] Exhibit A1 p.31.
In assessing the evidence of rehabilitation it is necessary to consider Mr M’s conduct while he was in detention. Although Harper J referred to reports that Mr M was a model client[8] whilst on remand, documents in evidence before me indicate that this may have been a report unduly favourable to Mr M. Case Notes referring to Mr M’s time on remand show that he was involved in a number of assaults on other clients and on one occasion, in a conspiracy to assault another person.[9] In March 2008 Mr M was noted as developing an increasingly defiant attitude and behaviour …[10] In August 2008 it was reported that Mr M had put pressure on his family members to bring contraband into the Centre.[11]
[8] Exhibit A1 p.31.
[9] Exhibit R1 pp.174-199.
[10] Exhibit R1 p.193.
[11] Exhibit R1 p.187.
Notwithstanding the incidents to which I have referred, the Pre-sentence Report by a Senior Case Manager and dated 16 December 2008 included the following observations:
In discussion with the writer [the applicant] presented as extremely remorseful and contrite and stressed that he takes full responsibility for his actions and the overwhelming grief that he has caused the victims [sic] family.
He appears to be a young man who displays great insight into his offending behaviour and has availed himself of all the rehabilitative programs offered to him, whilst on remand. He has utilised his time productively and proven to be a well behaved, relatively mature, respectful and positive role model for other clients and presents with strong prospects for rehabilitation.[12]
[12] Exhibit R1 p.22.
In a Custodial Progress Report dated 12 February 2009 (two months after Mr M was sentenced) the following was reported:
He interacts well with other clients and staff, being well mannered and courteous all the time. [The applicant] is usually mature most of the time but he can become immature particularly in front of other peers. … He has been involved in two incidents involving assaults of other clients since his arrival at MYJC. [The applicant] appears to have changed his attitude about his crime since he first entered the Eastern Hill Unit. Initially, [the applicant] seemed to take limited responsibility forwhat [sic] happened to his victim, stating that they didn’t beat him up that badly and questioned how he could have died. These days [the applicant] appears to fully understand what he did was wrong and takes full responsibility. He has stated several time to Unit Co-ordinator David Mowery how badly he wished he could take back the events that resulted in his victims [sic] death. …
… [the applicant] has stipulated that he wants to further his studies at either Diesel Mechanic’s [sic] or a trade that will keep him busy, once released. …
…
It is the writers [sic] belief that [the applicant] will attempt to make the best of the remainder of his life.
He appears very remorseful for his action’s [sic] and understands what he put the victim’s family through. He is still a young man and will still enjoy the company of younger friend’s, [sic] but has emphatically stated that he won’t ever re offend [sic].
It is the writer’s opinion that [the applicant] with his level of intelligence will complete his education and direct his life in the right direction.[13]
[13] Exhibit R1 pp.169-172.
Ms Williams was Mr M’s Case Worker while he was in detention and his Parole Officer after he was released from detention in March 2009. She provided a statement dated 8 February 2013[14] and gave evidence.
[14] Exhibit A2.
In an undated assessment of Mr M completed by Ms Williams, she recorded his attitude as being a denial of responsibility for offence/s and lack of awareness of, &/or empathy for, impact of offending on victim, family or community.[15] Ms Williams gave evidence that this assessment (which is undated) may have been made as much as four months after Mr M was released on parole. In her statement Ms Williams said that Mr M accepted full responsibility for his actions. She said that he had changed since she made the assessment referred to. In her opinion it is highly unlikely Mr M will re-offend.
[15] Exhibit R1 p.143.
When he was released on parole Mr M came under the supervision of the Adolescent Forensic Health Service. Two reports are in evidence, dated 24 July 2009[16] and 5 November 2009.[17]
[16] Exhibit R1 p.25.
[17] Exhibit R1 p.23.
Mr M was referred to the Service on 11 February 2009, shortly before he was released on parole. The referral was for management of anger, anxiety, and the provision of support during transition from custody to community.[18] Mr M received counselling in relation to these issues by Ms Mrkela, Psychologist.
[18] Exhibit R1 p.25.
On 24 July 2009 Ms Mrkela reported in part:
… His exemplary record of attendance attests to his willingness to make consistent efforts to participate in the counselling process and this is undoubtedly assisted by his employer and YJ Case Manager …
…
Interestingly although [the applicant] holds strong family values/connections that on the one hand promote non-criminal behaviour, he demonstrates some level of impaired social comprehension and awareness. That is, if [the applicant] feels that he is able to do something without being caught he is more likely to engage in that behaviour (e.g., remove the contents of a wallet he has found rather than hand the wallet in; drive unlicensed). However, since [the applicant’s] release into the community he has reported greater control and restraint to provocation or risky behaviour and this is likely attributable to his strong desire to complete his parole successfully. With respect to his offending, it is clear that the index offence was an unintended consequence of armed robbery. Although [the applicant] displays some level of remorse over his involvement in the index offence, acceptance of personal responsibility, and clear resolution to avoid further strife, the writer envisions that future sessions will be used to explore these further. …
… Protective factors include a close and supportive relationship with family members, current association with pro-social peers, and his full-time employment as a welder/fabricator.
…
Overall, according to the results of the HCR-20 [the applicant] does not pose high-risk of violent re-offending. However based on [the applicant’s] disclosures during sessions, a review of the nature and content of his previous offences, and the current index offence, his risk is likely to increase if he were exposed to destabilisers such as association with negative peers. His strong desire to please others and to be perceived in a favourable manner may also heighten his risk of re-offending.[19]
The HCR-20 test referred to covers three domains of risk factors, historical (past), clinical (present) and risk management (future).
[19] Exhibit R1 pp.26-27.
In her report of 5 November 2009 Ms Mrkela stated in part:
… During the course of discussions, it has become increasingly apparent that [the applicant] clearly understands the difference between ‘right’ and ‘wrong’ but has the tendency to neglect cues about what is socially correct in an effort to gain approval or acceptance, or prove himself in the presence of others. … these traits also leave him particularly vulnerable and susceptible to negative peer influence. While the writer has made efforts to address these unhelpful schemas, their longstanding and entrenched nature has made them difficult to shift and they will require ongoing intervention.
…
.. While the effects of [the applicant’s] actions on his victim, family, and the wider community have been discussed on a number of occasions, it has been observed that [the applicant] tends to avoid and/or has difficulty with prolonged introspection and reflection of the index offence.
…
… the writer is of the opinion that he would benefit from ongoing offence-specific treatment pertaining to violence prevention.[20]
[20] Exhibit R1 p.24.
In a Parole Progress Report dated 14 January 2011 Ms Williams stated in part:
[The applicant] remains committed to maintaining a positive lifestyle whilst being on parole. He engages openly with the writer and his response to supervision has been very encouraging. He continues to actively implement changes in his life, enabling him to move forward and have a career and lifestyle that he enjoys.
[The applicant] has demonstrated a maturity and willingness to enhance his circumstances and learn from his actions that lead him to being placed at Melbourne Youth Justice Centre and has been determined to move forward in his life with positive prospects for the future.[21]
[21] Exhibit R1 p.116.
Mr M completed his parole on 25 January 2011.
Mr M has been gainfully employed since his release from detention and he has undertaken further training. He has completed an apprenticeship in metal fabrications and is engaged in further apprenticeship training in mechanical technology. Mr M hopes to establish his own mechanical services business should he be free to do so.
Having considered all of the factors to which I have referred, I have come to the conclusion that despite the seriousness of Mr M’s conduct, the need to protect the Australian community does not weigh heavily in favour of cancellation.
After he considered all of the information available to him, Harper J formed the opinion that Mr M had better than reasonable prospects of rehabilitation. Mr M’s Case Worker and Parole Officer, Ms Williams, strongly supported Mr M being permitted to remain in Australia. Ms Williams had numerous occasions to talk with Mr M and to assess the risk of his re-offending. I give considerable weight to her views in addition to the judgement of His Honour.
Mr M has been fortunate in that the Minister allowed him to spend almost four years in the community between his release from detention and his visa being cancelled. To his credit, in that time Mr M availed himself of the opportunity to further his education and to demonstrate that he can live in the community as a law-abiding citizen. Had it not been for this lengthy period during which Mr M has lived in the community I would have decided that the need to protect the Australian community would have weighed heavily in favour of visa cancellation.
Primary consideration (b) – the strength, duration and nature of the person’s ties to Australia
Paragraph 9.2(1) of the Direction provides:
Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the person has resided in Australia, including whether the person arrived as a young child, noting that:
i.Less weight should be given where the person began offending soon after arriving in Australia; and
ii.More weight should be given to time the person has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Mr M came to Australia when he was ten years old and has lived here since. This is a factor which weighs slightly in his favour. He began offending as a minor, about seven years after his arrival. This a relatively short period and does not assist Mr M’s case.
Mr M’s contribution to the Australian community since his release on parole in March 2009 is a factor which weighs strongly in his favour. He has been in continuous employment (except for a short period when he voluntarily changed his job) and has studied to gain trade qualifications and to improve his skill level. At the time of the hearing he was in full-time employment and had recently commenced a two year apprenticeship.
Mr M’s parents and three younger siblings reside in Australia and have an indefinite right to remain here.
Mr M’s parents and his sister gave evidence. On the basis of their evidence and that of Mr M I am satisfied that Mr M has a very close and strong relationship with his family members and that they provide emotional and practical support to him and he to them. He assists in the care of his siblings and maintains regular contact with his younger brother who is still in detention. I take into account also that Mr M’s family members supported him while he was in detention. This support was commented upon favourably by the professionals involved in Mr M’s rehabilitation both before and after his conviction. Immediately prior to his being taken into immigration detention in January 2013 Mr M lived with his parents.
Since December 2010 Mr M has lived with his partner, Ms H. They plan to marry in about five years’ time. Ms H is a Registered Nurse and is in full-time employment. She provided a statement dated 12 February 2013 and gave evidence.
Ms H describes her relationship with Mr M as healthy and loving.[22] They are saving to buy their own home. On the basis of the evidence of Mr M and Ms H, I am satisfied that this is a genuine relationship which they both regard as permanent.
[22] Exhibit A4 para.5.
The strength and duration of Mr M’s family ties are such that I am satisfied that these factors weigh in favour of Mr M’s visa not being cancelled.
Primary consideration (c) – Best interests of minor children in Australia affected by the decision
I am satisfied that two minor children would be affected by a decision to cancel Mr M’s visa, they being his sister aged 17 years and his brother aged 15 years. They have lived with Mr M for most of their lives. I am satisfied that they would suffer some distress should their brother have to leave Australia and their contact with him be substantially reduced. However both children have the support of their parents and I am not satisfied that either of them would suffer any long-term detriment should Mr M be required to return to New Zealand.
I regard this consideration as being of minimal weight.
Primary consideration (d) – International non-refoulement obligations
This consideration is not relevant in this application.
Other considerations as set out in the Direction
Paragraph 10 of the Direction sets out other considerations which must be taken into account where relevant. I note that these considerations are generally to be given lesser weight than the relevant primary considerations.
The relevant other consideration listed in the Direction are:
a) Effect of cancellation of the person’s visa on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely;
b) Impact on Australian business interests;
c) Impact of a decision not to cancel a visa on members of the Australian community, including victims of the person’s criminal behaviour, and the family members of the victim or victims where that information is available and the person being considered for visa cancellation has been afforded procedural fairness;
d) The extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
i. The person’s age and health;
ii. Whether there are substantial language or cultural barriers; and
iii.Any social, medical and/or economic support available to them in that country.[23]
[23] Direction 55, paragraph 10(1).
On the basis of the evidence of Mr M, Ms H and Mr M’s parents and sister I am satisfied that the cancellation of his visa would have an effect on his immediate family in Australia. This effect would be largely emotional, although there would be some loss of the practical support Mr M provides, particularly to his younger brother.
If Ms H accompanied Mr M to New Zealand it would make it difficult for her to complete her studies. She plans to enrol in a medical degree in 2015 and could not afford to do this as an international student in New Zealand. Ms H said that she may not accompany Mr M to live in New Zealand until after she had completed her tertiary education. I accept this evidence.
There is no evidence of any impact on Australian business interests, other than Mr M’s employer would lose an employee. I regard this as negligible.
I have given serious consideration to the effect of a decision not to cancel Mr M’s visa on members of the Australian community, and in particular on Dr Cao’s family and friends. There is evidence of the effect on Dr Cao’s family in the sentencing remarks of Harper J. I am aware that the decision I make will add to the distress of the family and of others who knew Dr Cao. I take into account that some members of the Chinese community were upset by their perceived leniency of the sentence imposed on Mr M[24]. They are likely to be concerned by a decision not to cancel Mr M’s visa.
[24] Exhibit R1 pp.12-13.
It is very difficult to assess the impact of my decision on the community generally. I am sure that the views of individuals will differ greatly. It would be unfortunate if views on this decision are expressed in the media without those expressing their views reading these reasons and the provisions of Ministerial Direction [55]. It is important to note that the Supreme Court has determined the appropriate punishment of Mr M. It is not the Tribunal’s role to punish him further.
It is likely that Mr M would experience some difficulty in establishing himself in New Zealand. He has an uncle and some cousins in that country but he has had little contact with them and I am not satisfied that they would provide any meaningful support for him. However Mr M would be likely to be able to gain employment and enjoy a similar standard of living to that which he presently enjoys. He is young and healthy and there are no language and/or cultural barriers to his relocation.
Considering these other considerations I have come to the conclusion that they weigh in favour of Mr M being permitted to remain in Australia, but not significantly so.
Balancing all of the considerations
In this application two considerations have substantial weight – the protection of the Australian community and the strength, duration and nature of Mr M’s ties to that community.
The offences committed by Mr M are very serious and there would be serious harm to the community if he was to engage in similar conduct in the future. However, based on the evidence of the professionals engaged in assisting Mr M since he was taken into detention, I am satisfied that the risk of his re-offending is low. I have been strengthened in this view by the steps Mr M has taken in furthering his education and gaining stable employment over the period of four years since his release. In my opinion this weighs very heavily in favour of allowing Mr M to remain in Australia. I note also that he continues to have the support of his family, including Ms H.
Balancing all of the considerations, I am satisfied that the preferable decision is that the decision under review be set aside.
CONCLUSION
The reviewable decision, being the decision of the Minister for Immigration and Citizenship made 15 January 2013 to cancel the Class TY Subclass 444 Special Category (Temporary) visa will be set aside.
In substitution it will be decided that in accordance with the provisions of subsection 501(2) of the Migration Act 1958 (Cth) the discretion to cancel the applicant's Class TY Subclass 444 Special Category (Temporary) visa is not exercised.
I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.
........................[sgd]......................................
Associate
Dated 27 March 2013
Dates of hearing 14 March 2013 Advocate for the Applicant Paul Smith, Migration Agent Advocate for the Respondent Matyas Kochardy, Litigation and Opinions Branch
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