TKBP and Minister for Immigration and Border Protection (Migration)

TKBP and Minister for Immigration and Border Protection (Migration) [2017] AATA 1425 (4 September 2017)
Division:GENERAL DIVISION
File Number: 2017/1178
Re:TKBP
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:4 September 2017
Place:Sydney

The decision under review is affirmed.
.....................................[sgd]...................................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION – mandatory visa cancellation – special category (temporary) visa – character test – substantial criminal record – applicant sentenced to a term of imprisonment of 12 months or more – protection of the Australian community – best interests of minor children – expectations of the Australian community – other considerations – decision affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 499, 501, 501CA
CASES
Anaki and Minister for Immigration and Border Protection (Migration) [2016] AATA 693
Brown v Minister for Immigration and Border Protection [2010] FCAFC 33
Candemir and Minister for Immigration and Border Protection (Migration) [2017] AATA 531
Do and Minister for Immigration and Border Protection [2016] AATA 390
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Rabino and Minister for Immigration and Border Protection (Migration) [2016] AATA 999
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member Linda Kirk
4 September 2017
Background

The Applicant is a citizen of New Zealand who first arrived in Australia on 10 March 1995 as the holder of a Special Category (Temporary) visa. Since his first arrival in Australia, the Applicant has held numerous Special Category (Temporary) visas.
On 24 March 2016, the Mount Druitt Local Court sentenced him to 15 months’ imprisonment with a non-parole period of eight months and release subject to supervision for both the offences of assault police officer in execution of duty causing actual bodily harm and resist officer in execution of duty, to be served concurrently, four counts of destroy or damage property for which he was fined $400 for each count, and fail to appear in accordance with bail granted acknowledgement for which he was convicted with no other penalty.
On 17 October 2016, a delegate of the Minister for Immigration and Border Protection (the Minister) made a Mandatory Visa Cancellation Decision under s 501(3A) of the Migration Act 1958 (the Act), cancelling the Applicant’s visa, on the basis that he did not pass the character test.
The Applicant made a request for revocation of the Mandatory Visa Cancellation Decision on 17 November 2016, and on 19 December 2016 he made representations to the Minister in support of his revocation request.
On 1 February 2017, a delegate of the Minister decided not to revoke the Mandatory Visa Cancellation Decision under section 501CA(4) of the Act. On 27 February 2017, the Applicant lodged an application with the Administrative Appeals Tribunal seeking a review of this decision.
The matter was heard in Sydney on 9 May 2017. The Applicant attended the hearing in person and represented himself, and called several witnesses who gave evidence on his behalf.
The Relevant Legislation
Section 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) …; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The Minister must cancel a visa that has been granted to a person if satisfied that the person does not pass the character test. A person is taken to not pass the character test if he or she has a substantial criminal record. Section 501(7)(c), provides that a person has a substantial criminal record if “the person has been sentenced to a term of imprisonment of 12 months or more”.
However, under s 501CA(4), the Minister – or the Tribunal standing in the Minister’s shoes – has the discretion to revoke the original cancellation decision under s 501(3A), termed the original decision. Section 501CA(4) provides:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Ministerial Direction No.65
When considering whether to revoke the cancellation decision, the Tribunal is required under s 499(2A) to have regard to the Minister’s Direction relevant to s 501CA, Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).
The Direction sets out the government’s policy on visa cancellations and contains a number of introductory statements, including the expectation that non-citizens will obey Australian laws and behave in accordance with Australian community values and standards if they wish to retain the privilege of coming to or remaining in Australia.
The Preamble to the Direction provides a framework for the guidance of decision-makers considering cancellation of a visa. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:
The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.[1]
[1] Direction No. 65 at para 6.1(1).
The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The latter set the framework within which the individual considerations set out in Parts A, B and C of the Direction are set.
The first paragraph of the General Guidance provides:
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.
The following Principles are set out in paragraph 6.3:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing consideration may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
(Emphasis added)
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account the consideration in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
In the Applicant case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under s 501(3A).
In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case.[2] The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

19. Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include primary considerations and other considerations. The primary considerations are:
(a)Protection of the Australian community from criminal and other serious conduct;
(b)The best interests of minor children in Australia affected by the decision; and
(c)Expectations of the Australian community.
[2] Direction No. 65 at [8(1)]

Other considerations are:
(a)International non-refoulement obligations
(b)Strength, nature and duration of ties [to Australia];
(c)Impact on Australian business interests;
(d)Impact on victims
(e)Extent of impediments if removed.
Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[3] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against … cancellation of the visa …”. Generally, primary considerations should be given greater weight than other considerations and one or more primary consideration may outweigh other primary considerations.[4]
[3] Direction No. 65 at para 8(2).
[4] Direction No. 65 at paras 8(4) and 8(5).
The issues before the Tribunal
It is clear that the Applicant ‘s visa was validly revoked pursuant to s 501(3A) of the Act, given that, with the custodial sentence imposed on him on 24 March 2016, he does not pass the character test. In the circumstances of this case, s 501CA(4)(b)(i) cannot apply as the Applicant cannot pass the character test set out in s 501(7) as he has been sentenced to a term of imprisonment of 12 months or more. The only relevant provision is that in s 501CA(4)(b)(ii). It has been interpreted by North ACJ in Gaspar v Minister for Immigration and Border Protection:[5]
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. …[6]
[5] [2016] FCA 1166
[6] [2016] FCA 1166 at [38]
Therefore, the sole issue before the Tribunal is whether there is another reason, pursuant to s 501CA(4)(b)(ii), why the Mandatory Visa Cancellation Decision should be revoked. This requires consideration of any mitigating or extenuating factors favouring the Applicant which might militate against the cancellation of his visa.
The evidence before the Tribunal
The Applicant was born on 13 February 1995 in New Zealand and is currently 22 years old. When he was three weeks’ old he migrated to Australia with his parents. He has lived his entire life in Australia, and he has always considered himself an ‘Australian’. His family is of the Mormon faith and he attended the Church of Jesus Christ of Latter Day Saints (‘the Church’) in the Fairfield region of Sydney with his family on a regular basis during in his formative years, adolescence and young adulthood. He continues to practice his religion.
The Applicant has four siblings, two brothers, aged 26 and 23 years, and two sisters aged 25 and 16 years. His mother and youngest sister are Australian citizens. His other siblings and his father are nationals of New Zealand and are the holders of permanent resident visas.
In a statement dated 2 May 2017, the Applicant described his ‘traditional Islander family’ as exceptionally close, family orientated, religious people, and said he holds a very special and close relationship with his parents and siblings. When he was growing up, his family had little money and they resided in one of the most troubled and difficult parts of Australia, Mount Druitt. His father worked hard to support his wife and five children. His parents did not speak much English when he and his siblings were growing up and this made it difficult for them to participate in the Australian community. His parents did not permit them to socialise with friends or to go out and attend parties, and as a consequence he and his siblings spent all their time at school, Church and the family home. He and his siblings would also be subjected to ‘beatings’ and ‘hidings’ from their father if they were cheeky or misbehaved. This caused him ‘emotional turmoil’.
The Applicant has a number of extended family who reside in Sydney. He is close to his auntie (his mother’s sister) and her four children (his cousins) whom he spent a lot of time with growing up and who remain a close extension of his immediate family. One of his cousins has five young children aged six, five, four, three and two years, and he is very close to these nieces and nephews. His older brother has a son aged two years with whom he has a very special connection. In his evidence to the Tribunal, the Applicant said that when he was living at home he would babysit his nephew once a week on the weekend when his brother was at work. He also shares a positive relationship with his uncle (his father’s cousin).
The Applicant completed his primary and high school education in Australia, leaving school in 2011 when he was 16 years old after completing Year 10. After leaving school he worked full-time with his father on an intermittent basis as a furniture removalist for about one year. He also undertook glazing work part-time for approximately six months at various construction sites in Sydney from 2012 to 2014, and assisted his cousin with concreting work for various building and construction businesses in 2014 and 2015. He lived at home throughout this period and contributed money to the family until he was imprisoned in March 2016.
As a member of the Church, the Applicant actively provided voluntary community services for various members of the Church community during his adolescent years, including general cleaning work, cleaning roofs and moving laws at residential premises, and cleaning shopping centres. He also contributed to the sports community in the South-Western Sydney region, where he played rugby league for at least two years when he was a teenager. He told the Tribunal he enjoyed playing Aqua Golf and going to the movies.
The Applicant has suffered from epilepsy since he was born. He did not suffer from the condition in his younger years but it returned in 2004. His epilepsy disrupted his studies and had a broader effect on his mental and physical health. He has experienced numerous seizures over the years and he takes daily medication to control his symptoms. Prior to his imprisonment and detention at Villawood Immigration Detention Centre (VIDC) he regularly would undergo CAT scans and MRIs of his brain to monitor his brain activity in relation to his epilepsy. His most recent seizure was a few days before the hearing. He said this occurred because he was not given his medication for three days. Before this, he had not experienced a seizure for a couple of years.
The Applicant told the Tribunal that he has only returned to New Zealand on one occasion when he went there on holiday with his family when he was 10 years old. On this visit his family visited his uncle (his mother’s brother), who has now passed away. His uncle has four children (his cousins), two of whom live in New Zealand. The Applicant said he is not in contact with these cousins, both of whom have been in gaol, although one is now on parole.
Criminal history
The Applicant has a criminal record that dates from 2010 when he was 15 years old. On 16 August 2010, he was found guilty of the offence of Robbery in company at Parramatta Children’s Court and was placed on a supervision order. On this occasion, with the assistance of two of his friends, he stole a mobile phone from a 13 year old boy at the bus stop. He told the Tribunal that there was no violence involved in this offence.
On 22 October 2010, he was again found guilty of the offence of Robbery in company and was placed on juvenile justice supervision by the Parramatta Children’s Court for about 15 months. At this time, he was a student at Granville Boys High School, and with his friends he stole a bag containing about seven dollars from a person at the train station as he needed the money to get home.
On 15 June 2011, he was found guilty of Use of offensive weapon to prevent lawful detention. This incident occurred in March 2011 when he had run away from home and was sleeping at friends’ houses for several days as he had breached his bail by failing to report to the station. His eldest brother found him at the Dawson Mall complex in Mount Druitt (close to where his family lived) and gave him a “hiding” for running away from home and upsetting his mother. A police officer attempted to arrest his brother for assaulting him, at which point the Applicant used a “pizza sign” to hit the police officer so as to stop his brother from being arrested. He was given 70 hours of community service for this offence. He acknowledges that, although it is not an excuse for his offending, at the time he was highly distressed by the whole situation, hungry and steep deprived.

When questioned in cross-examination, the Applicant agreed that he breached a good behaviour bond in relation to his previous offences on two occasions in 2011. He told the Tribunal he was suspended from school three times in Years 7 and 8 for being disruptive in class. He confirmed he was expelled from school when he was in Year 11.
The Applicant told the Tribunal that he was sent by his parents to Tonga in 2012 for a bit less than a year to complete his Year 12 and so he could get away from bad influences.
In February 2014, the Applicant was convicted for three driving offences, Drive with low range prescribed concentration of alcohol and penalised $300 and given a three-month disqualification from driving by the Paramatta Local Court. He also was convicted of the offences of Learner not accompanied by driver and Learner driver not display L plates as required and fined $100 for each offence. On this occasion, he had been at a friend’s house and had been drinking. He was caught by police when driving to the shops.
On 24 March 2016, he was convicted of the offences of Assault police officer in execution of duty, cause actual bodily harm and Resist officer in execution of duty. He was sentenced to a head sentence of 15 months for each offence to be served concurrently, and given a non-parole period of eight months, with the balance to be served on parole. He also was convicted of four counts of Destroy or damage property and fined $400 for each of these offences.
In his statement dated 2 May 2017 and in his evidence to the Tribunal, the Applicant said at the time of this offending in August 2015 he was very intoxicated as he had been drinking with seven or eight friends at the back of a friend’s house. He and his friends damaged cars in the street and officers of the New South Wales Police Force attended the premises to arrest them. He told the Tribunal that he hit the police officer with a clenched fist and they started fighting. According to the Applicant he acted recklessly and he did not plan to assault police or resist arrest. His offending was ‘spontaneous’ and occurred in the ‘heat of the moment’. He said his actions were stupid and he is full of regrets.
In his evidence to the Tribunal, the Applicant confirmed as accurate the description of the assault on the police officer, referred to in the Sentencing Remarks of the Magistrate on 24 March 2016 as follows:
[The Applicant] punched [the officer] to the face with a clenched fist; continued to throw 20 punches at [the officer].
…
The injuries … inflicted on [the officer] were nausea, dizziness, headache, bruising, swelling to left eye, lumps to head, graze to right forearm and left elbow, pain and discomfort to his right knee resulting in difficulty in walking, a sore jaw and hearing impairment to his [right] ear...
The Sentencing Remarks of the Magistrate referred to the Pre-Sentencing Report and noted it found the Applicant was suitable for community service, however the Magistrate concluded that in his view there was no other alternative other than to impose a custodial sentence.
In his statement dated 2 May 2017, the Applicant expressed his remorse for his criminal history and his offending. He states:
I hold great sorrow in my heart for my criminality, and I am particularly sorry for the victims of my crimes (and to the wider Australian community). I appreciate my criminal conduct has caused distress and suffering to my victims, and I am truly sorry to them for my wrongdoing.
… I have had a lot of time to reflect on my criminal conduct. I have often thought about my criminal history and offences when I have tried to sleep at night. I am also highly embarrassed that I have disgraced my family (and placed an incredible amount of stress and pressure on them).
In his statement, he said that the cancellation of his permanent residency visa has given him a real ‘wake up call’. He has removed bad influences from his life, particularly friends with whom he previously associated, and has given up alcohol, both of which were factors that contributed to his criminal conduct.
Time in Prison and Immigration Detention
During his time in prison, the Applicant participated in the ‘Reinvest Program’ to which he was referred by Legal Aid New South Wales and a Magistrate at Mount Druitt Local Court. On the recommendation of this Program, he has been taking medication for ‘impulsive behaviour’ together with his epilepsy medication. He told the Tribunal that he has given up alcohol and has not had a drink since August 2015. He also has ceased contact with his former group of friends, including those who were also involved in the incident in August 2015.
He worked at the Oberon Correctional Centre as a Timber Packer for approximately two months. He said it was difficult for him to undertake further employment in prison as he was moved between several different correctional institutions, Goulburn Correctional Centre and Silverwater Correctional Centre, during his eight months’ imprisonment.
He participated in several educational reform courses in prison including completing the Corrective Services New South Wales (CSNSW) EQUIPS Foundation Program (where participants work through various practical scenarios on the cause of crime and dealing with difficult situations). He also participated in the Young Adult Offender Program, Numeracy and Money Management courses and attended several anger management classes, which teach breathing techniques to deal with anger. The facilitator of the Kickstart Evaluation noted he needed to address anger and alcohol issues. The Applicant told the Tribunal that he could not continue these classes when he was moved to another correctional facility in Goulburn.
In his statement dated 2 May 2017, the Applicant said that both his immediate and extended family went to visit him during his time in prison. They would often bring him food, and they would all be together. His parents would try to give him money where they could, which he could use throughout the week to gain some additional benefits (not provided by the regular prison regime). He very much looked forward to the visits he received from his immediate and extended family. He credits his family for providing him with the strength and love to get through his time in prison ‘which is a difficult place, filled with angry, drug and mentally affected people’.
The Applicant was asked about reports of a number of incidents he was involved in while he was in prison detailed in CSNSW correspondence dated 22 August 2016. He confirmed that when he was in Oberon Correctional Centre he and two others assaulted another inmate in the compound. As a consequence of this incident he was unable to successfully complete the Young Adult Offenders Program. He also confirmed he was involved in a fight in one of the units in July 2016 during which he assaulted an inmate. In August 2016, he was placed under a segregated custody direction and a review of his classification was conducted. He was then transferred to Bathurst Correctional Centre and his security rating was raised from C2 to C1. Within one day of his arrival at Bathurst Correctional Centre the Applicant was involved in a serious assault on an inmate and the segregation order was extended for three months. When questioned, the Applicant agreed that his behaviour in prison was aggressive and non-compliant.
The Applicant was transferred to immigration detention at VIDC on 23 November 2016. Since arriving at VIDC he has tried to keep active ‘training at the gym, playing soccer with other clients/detainees and participating in touch football competitions.’ He has been visited frequently by his immediate and extended family in Sydney who have brought him food, and kept him company for as long as practicable. His time in immigration detention has been bearable only because of these family visits.
The Applicant was asked about reports of a number of incidents he was involved in at VIDC as detailed in a VIDC report dated 17 January 2017. On 16 January 2017, he was seen leaving a unit with another detainee and was accused by the occupant of the unit of assaulting him. The Applicant agreed he was involved in this incident. He also confirmed the incident detailed in a VIDC report dated 28 January 2017 that on this date he was involved in an altercation in the dorm during which he threw a punch at another detainee. On this occasion, there was a report made of Use of Force/Restraints used on the Applicant by the staff at VIDC. He confirmed that this occurred.
The Applicant was also asked about a VIDC report of an incident on 24 February 2017 involving an assault on a Bangladeshi detainee in his room by him and three other New Zealand detainees. He said that he was not involved in this assault on the detainee. He agreed he entered the room of the detainee, but that there were about 10 others in the room by this time, and he was not involved in the assault. He was moved to high care accommodation following this incident and review of CCTV footage.
The Applicant was further asked about a report about an incident on 27 March 2017 involving him punching another detainee in the eye for no reason causing him injury. He said that he was not involved in this incident. The Applicant confirmed that he was taken into police custody on 4 May 2017 and transferred from VIDC to Silverwater Correctional Centre where he currently resides. He confirmed that he has been charged by the police with common assault.
The Applicant was asked whether he considers that he has addressed his aggressive and violent behaviour and removed bad influences from his life. He said that when he is released he wants to complete an aggression course that he was unable to complete in prison. When questioned, he agreed that his behaviour in prison and in immigration detention shows that he is still behaving aggressively, and continues to have difficulty controlling his anger, even when sober.
Intentions and future plans
The Applicant told the Tribunal that he would like to work in construction and also to play rugby league. He also would like to study accounting as he has a friend who has started a business and he’d like to work with him when he qualifies. He has looked at enrolling at TAFE to undertake such a course part-time while he is working.
The Applicant said that if he is returned to New Zealand he will have no friends and no support. He has not discussed his possible return to New Zealand with either his parents or his siblings.
In his statement dated 2 May 2017, the Applicant stated:
I would like to be given the opportunity to contribute to the Australian community in the future. I have spent my entire life in Australia. All of my family and friends are from Australia. I do not have a relationship with anyone in New Zealand.
I am absolutely horrified at the prospect of being deported to New Zealand. I will have no direct family support (given that all my immediate family live in Australia); and that my extended family also live in Australia (and some of which also live in the United States of America).
I do not wish to be forcefully removed to New Zealand. I would be absolutely heartbroken and shattered beyond words if I was deported. I also know for a fact that all of my Immediate and extended family in Australia would be inconsolable and broken-hearted if I was removed from Australia.
I beg the AAT to give me one final opportunity to right the wrongs of my past. With the prospect of future deportation (in the event that I am successful in my appeal), this is deterrence enough to keep me away from criminal offending. I wish to spend the balance of my life in Australia, with my family and friends.
I am exceptionally close with a number of members of the Australian community beyond my family … Having grown up in Australia my entire life, I have developed a number of special and close friendships with many Australians. I sincerely hope that I can be given a final chance to remain in Australia.
If the AAT makes a decision to revoke the mandatory cancellation of my visa, I will reside at the family home in Willmot I plan to get a job, and first and foremost, provide financial assistance to my immediate family (who need my assistance to contribute to the family). I plan to get my life back on track, and become an active and positive member of the Australian community.
Evidence of Applicant’s mother
The Applicant’s mother provided a statement dated 2 May 2017 and gave evidence by phone at the hearing in support of her son, the Applicant.
The Applicant’s mother told the Tribunal that they migrated to Australia when her son was three weeks’ old and have been here for more than 20 years. She does not work and stays at home and cares for her husband, two daughters and son.
In her statement, she said that her son, the Applicant, has always been very supportive and caring towards his family and he would help her out at home, including with her youngest daughter. She told the Tribunal that she wants them to be able to remain together in Australia. Her son has told her that he wants to go back to school to study so he can get a good job. She said that he did not enjoy the work he had done in the past and he wants to work in a different field.
The Applicant’s mother confirmed that her son was suspended from school and eventually expelled due to his disruptive behaviour and fighting. She told the Tribunal that they sent the Applicant to Tonga for about a year for him to finish school and so he would stay away from bad influences. They visited their son in Tonga while he was there, and she and other family members spoke to him on the phone regularly.
The Applicant’s mother told the Tribunal that her son had significant health problems when he was growing up due to his epilepsy. He has taken medication for this condition for most of his life from when he was born until he was two years old, and then it returned again when he was five years old. She said that his epilepsy has disrupted other aspects of his life including the ability to play sports at school and focus on his education. She wants her son to remain in Australia so she can take care of his health and take him to medical appointments.
The Applicant’s mother told the Tribunal that her son has a very good relationship with his uncles, aunts, cousins, nieces and nephews. She said he is very good with the children and plays with them, especially with her grandson.
In her statement, the Applicant’s mother said that she is well aware of her son’s criminal history and her family has always supported her son during his various court cases and since he has been incarcerated. She told the Tribunal that she would visit him every week while he was in prison and immigration detention, and she would also speak to him on the phone two or three times a week. She was asked whether the Applicant told her about any of the incidents he was allegedly involved in while he was in prison and immigration detention and she said he had not. However, he had told her husband and she talked to her son about it. She said her son finds it hard to tell her about his behaviour and he becomes upset.
In her statement, the Applicant’s mother stated:
[The Applicant] has shown great remorse for his criminal conduct, weeping to my immediate family on a number of occasions.
My husband and I have had various talks with [the Applicant] about his most recent criminal offending, and the appalling nature of it. I have looked into [the Applicant’s] eyes, and can honestly see that he is sorry for his wrongdoing.
[The Applicant] has promised my husband and I that he is finished with a life of crime, and wants to contribute both to the Australian community and to our family more closely. I sincerely believe [the Applicant] in the various positive representations he has made to my husband and I.
The Applicant’s mother confirmed that she knows about the four reports of her son’s violent behaviour in prison and immigration detention, and that her older son told her that the Applicant is now in police custody and has been charged with common assault.
In her statement, she said that she would be ‘heartbroken’ if her son is returned to New Zealand. She regrets not obtaining Australian citizenship for her son and, while she appreciates that he is not an Australian citizen, he has lived in Australia his whole life. She said that her family hold ‘grave fears’ for her son if he returns to New Zealand as he has no family or support network there.
In her evidence to the Tribunal, the Applicant’s mother said they have no money to go to New Zealand to see her son if he is returned there. She said that they are not in contact with their relatives in New Zealand. They returned to New Zealand for a class reunion in 2016 and then went to Tonga to see her mother.
The Applicant’s mother told the Tribunal that her son is trying to change his aggressive behaviour now that he is becoming a man.
Evidence of Applicant’s older sister
The Applicant’s older sister provided a statement dated 2 May 2017 and gave evidence by phone at the hearing in support of her brother. She lives at home with her parents, brother and younger sister. She helps her mother look after her sister.
The Applicant’s older sister said that even though her brother makes little mistakes he is shy and he needs the support of his family to ‘stay on the straight and narrow’.
She told the Tribunal that she visited him once while he was in prison/immigration detention and that she spoke to him on the phone once or twice a week. She also confirmed that she stayed in touch with her brother on Facebook when he was in Tonga in 2012.
The Applicant’s older sister confirmed that her brother got into trouble at school for fighting. He had not told her about any of the alleged incidents while he was in prison or in immigration detention. She is however aware that he has recently been charged with common assault.
She told the Tribunal that she believes her brother will change his behaviour. The Applicant’s older sister said that if he has to return to New Zealand it would be sad and it wouldn’t be fair for him to have to live there by himself.
Evidence of Applicant’s eldest brother
The Applicant’s eldest brother provided a statement dated 2 May 2017 and gave evidence by phone at the hearing in support of his brother. He has only recently been released from prison and has not therefore been able to visit his brother in prison or in VIDC.
The Applicant’s eldest brother told the Tribunal that the Applicant had been hanging around with the wrong people and this is why he got into trouble, but when he gets out he will change. They are a very close family and he wants them to all be together again.
He confirmed that the Applicant spent time in Tonga in 2012 and that they stayed in touch by phone two or three times a week. When his brother was in prison they wrote letters to each other. He told the Tribunal that his brother had told him about the alleged assaults in prison and that he was transferred to another correctional facility. He also said his brother had told him about the alleged incidents at VIDC, and that he has been charged with common assault. He said he thought his brother is sad, lonely and homesick and this is why he has been behaving badly.
In his statement dated 2 May 2017 he stated:
[The Applicant] has said to me that he is “a man” now; and over a history of criminal offending. I believe [the Applicant]. Given my own recent experiences in prison for the first time (like [the Applicant], serving a custodial sentence), jail can be a positive experience; and [the Applicant] has indicated to me he has positively used prison and immigration detention to strengthen his mind, health and spirit.
The Applicant’s eldest brother told the Tribunal that if his brother returns to New Zealand he won’t have anyone to support him and to ‘lead him down the right path’. He said that his family has always supported his brother, but that he has made the wrong decisions.
Evidence of Applicant’s older brother

The Applicant’s older brother provided a statement dated 2 May 2017 and gave evidence by phone at the hearing in support of his brother.
The Applicant’s older brother said that his brother has been in Australia since he was three weeks’ old and that if he is returned to New Zealand he will have no family and no friends and it will affect the whole family. He is very close to his brother as there is only one year between them in age.
In his statement, he said that his brother “shares a special relationship with [his] son, and the two of them love each other very much.” In his evidence to the Tribunal, he confirmed that his brother is very close with his son, and he would leave his son to stay with his parents every weekend while he was at work and his brother would baby-sit his son. His son lives with him and his partner and they jointly care for his daily needs, other than on weekends when his son stays with his parents and siblings.
The Applicant’s older brother confirmed that the Applicant got into trouble at school and that he was expelled, but he could not recall the reason for this expulsion. When his brother was in Tonga they stayed in contact by phone on a weekly basis, usually on Sundays when the family was all home. When his brother was in prison he was overseas and they’d talk on the phone. Now he talks and texts him most days and visits him whenever he can at VIDC. His brother told him about the alleged incident at Oberon and also the one at VIDC. He is aware that he has now been charged with common assault.
He told the Tribunal that his brother got together with the wrong people and this is why he got into trouble. However, his brother has now matured and is a different person. He has told him that he wants to go back to school and study to become an accountant. He said that he knows from personal experience that in prison it is difficult not to get involved in incidents which are not your fault.
In his statement he said:
In all of my recent dealings with [the Applicant] personally, I believe that he is genuinely remorseful for his criminal conduct. [The Applicant] has indicated to me that he is sorry for his criminal wrongdoing, and wishes to make amends with his life in Australia (and be close to his family).
[The Applicant] has expressed grave disappointment in his criminality to me, indicating that he knows he can become a better person. [The Applicant] was always one of the most intelligent members of our immediate family, excelling (at times) at various subjects during our schooling years. [The Applicant] is hugely regretful that he has not yet reached his full potential in Australia.
Having seen [The Applicant] face-to-face on various occasions in recent months, I have seen a new [the Applicant]; a mature, well-developed young man who actually wants to make a positive change in his life. [The Applicant] has indicated that he is sorry for causing harm to his victims (and disgracing his family in the Australian community more broadly). In that respect, I wholeheartedly believe him in his various representations to me.
Other statements of support
The Applicant’s father and his younger sister provided written statements dated 2 May 2017 but did not give evidence at the hearing. In these statements, they provided support for their son and brother consistent with the evidence of his mother and other siblings.
In her statement, the Applicant’s younger sister confirmed that she is 16 years of age and is currently in Year 11 at High School. She stated:
I love [the Applicant] very much. Apart from [the Applicant] being one of my bigger brothers, I have also seen [the Applicant] like a second “father figure” in my life. [The Applicant] is particularly close to me out of all my siblings, chiefly because he took care of me a lot when we were both younger (in circumstances where my parents had to leave the family home for a short period of time).
I understand that [the Applicant] has a genuine form of brotherly love for me also. If [the Applicant] was deported to New Zealand, I would be heartbroken. It's hard to put into words how sad I would in fact be. [The Applicant] has been a massive part of my life from the very beginning; it would be so weird and sad to see him be so distant (in another country).
[The Applicant] is loved by not only his immediate family but by all of his extended family in Sydney. I have had the benefit of reading [the Applicant’s] statement (dated 2 May 2017), and I agree with the contents of that statement. [The Applicant] has made many mistakes in the past, but I do not believe he should be deported to New Zealand. [the Applicant] has lived in Australia, in effect, for his entire life.
In addition to the statements and oral evidence of his family members, the Applicant also provided two letters from his parents and three character references as follows:
·Faxed letters of 2 March 2017 from the Applicant’s mother and father;
·Statement of an acquaintance of the Applicant dated 14 December 2016, who is an employee of NSW Family and Community Services and who has known the Applicant for 10 years through their membership of the Youth group of the Church, and who worked with him in local community service projects. He describes the Applicant as “a trustworthy and loyal young man, with a Christian family-centred upbringing capable of making the right decisions when surrounded by good peers and associates”;
·Undated statement of a Bishop whose congregation the Applicant was a part for a few years and who describes him as “[a] young man of courageous character that would go out of his way to help someone else in need.”;
·The statement of a School Community Liaison Officer with the Department of Education and Communities and President of the Church dated 9 January 2017, who has known the Applicant for 10 years and has “found him to be of a good reputation and character”. In his opinion, “[i]ncidents of latter matters which have shed some negative light on him have not been consistent with his presdisposition of being a model citizen.”
The Applicant also provided a letter from St Marys Medical Centre dated 30 January 2017 certifying that he suffers from Congenital Paroxysmal Choreoathetosis requiring long term medication (Lamictal).
Exercise of discretion to revoke the mandatory cancellation of the Applicant’s visa
The Tribunal must consider any mitigating circumstances which may militate in favour of setting aside the decision not to revoke the mandatory cancellation of the Applicant’s visa. In doing so, it must be guided by the terms of the Direction.
Principle 1 of the Direction in paragraph 6.3(1) notes that the grant of a visa 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.
Protection of the Australian community
Primary Consideration 1 of Part C is the Protection of the Australian community. Paragraph 13.1(1) of the Direction provides:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens … Mandatory cancellation without notice of the visas of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 13.1(2) directs that decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 13.1.1 goes on to expand on the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. It sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/ or sexual crimes are viewed very seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c)The sentence imposed by the courts for a crime or crimes;
(d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(e)The cumulative effect of repeat offending;
(f)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(h)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention … is serious…
Nature and seriousness of the Applicant’s conduct to date
In assessing the seriousness of the Applicant’s past criminality, and the risk posed should he commit further offences, the Tribunal is mindful of his long and persistent pattern of offending from the age of 15 years to date.
Each of the Applicant’s early offences, except those that are driving-related, involve violence or the use or threat of force. The two convictions in 2010 of Robbery in company and the conviction in 2011 for Use of offensive weapon to prevent lawful detention included force or threat of force on the victim, including striking a police officer with a sign.
The convictions in March 2016 of Assault police officer in execution of duty cause actual bodily harm and Resist officer in execution of duty involved a serious assault against a police officer in the performance of his duties causing him significant injuries. The Tribunal notes that in his evidence at the hearing, the Applicant confirmed that he punched the police officer to the face with a clenched fist and continued to throw 20 punches at the officer and he then resisted arrest. Having regard to paragraph 13.1.1(1)(a) and paragraph 13.1.1(1)(b) of the Direction, the Tribunal finds that these are serious crimes, as they involved violence and were committed against a government official due to the position he held, and in the performance of his duties.
The Tribunal also notes that on two occasions the Applicant breached good behaviour bonds and breached his bail conditions on one occasion, and finds that this indicates the Applicant’s lack of respect for Australia’s law enforcement framework and disregard of judicial authority and Australian law, contrary to the Principles in paragraph 6.3(1) of the Direction.
The Tribunal has had regard to the cumulative effect of the Applicant’s offending in determining the seriousness of his conduct in accordance with paragraph 13.1.1(e) of the Direction. It also has taken into account the factors in paragraph 13.1.1(d) of the Direction, namely the frequency of his offending and whether there has been a trend of increasing seriousness. It finds that, from a young age the Applicant displayed disruptive behaviour at school which led to him being expelled, and that from the age of 15 years he began to engage in criminal behaviour involving increasing violence, culminating in the offences for which he was convicted to 15 months’ imprisonment in March 2016.
In accordance with paragraph 13.1.1(c) of the Direction, the Tribunal has noted the remarks of the Sentencing Magistrate in imposing a custodial sentence for the two primary offences for which the Applicant was convicted in March 2016. Whereas the Pre-Sentencing Report recommended that the Applicant could be considered suitable for community service, and the Magistrate considered alternatives to imprisonment, including intensive corrections or home detention, he concluded that there was no other alternative other than for him to impose on the Applicant a sentence of full-time imprisonment. The Tribunal finds that the sentence imposed on the Applicant of 15 months’ imprisonment for both offences, when other alternatives were available, indicates the seriousness of the Applicant’s criminal offending.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In assessing whether the Applicant represents an unacceptable risk of harm to the Australian community, the Tribunal must have regard to paragraph 13.1.2 of the Direction:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).
In having regard to the nature of the harm if the Applicant were to re-offend, the Tribunal notes that to date, all of his previous criminal offences, with the exception of the driving-related offences, involve violence or the threat or use of force and that therefore the pattern of his offending is one of aggressive and violent behaviour. Accordingly, the Tribunal finds that if the Applicant were to re-offend, the likelihood is that the offence would involve violence or aggressive behaviour and the threat or use of force and therefore the harm to his potential victims would be significant and be likely to involve significant physical injury.
In having regard to the likelihood the Applicant will engage in further criminal or other serious conduct, the Tribunal notes the Applicant’s claims in his submissions and those of his family members in their evidence that he has a low risk of re-offending. However, the pre-sentencing report stated the risk of him re-offending was moderate, and it recommended that he undertake a number of courses and programs to address his aggressive behaviour. The evidence before the Tribunal is that, whereas the Applicant did participate in various courses while in prison, he failed to complete both the Young Adult Offenders Program and the Equip Aggression Program.
The Tribunal finds that when given the opportunity in prison to undertake courses and programs to address his aggressive behaviour, the Applicant was unable, if not unwilling, to complete these successfully, and thereby did not demonstrate his commitment to addressing his behavioural problems and to his own rehabilitation.
The Tribunal notes the Applicant’s claims, and those of his family, that the primary causative factors for his offending behaviour prior to his incarceration were alcohol and associating with individuals who were a bad influence. The Tribunal accepts that the Applicant has ceased drinking since being incarcerated, and also that he no longer associates with his former friends, including those with whom he jointly engaged in criminal behaviour.
In considering the likelihood of the Applicant engaging in future criminal or serious conduct, the Tribunal is to take into account available information and evidence on the risk of re-offending. The evidence before the Tribunal, particularly the CSNSW and VIDC reports detailed in the paragraphs above, demonstrates that in the 14 months since the Applicant has been incarcerated he has continued to engage in violent and aggressive behaviour. The Tribunal notes that the Applicant was not charged following the alleged incidents in prison and that he has only recently been charged with common assault following the alleged incident at VIDC in March 2017 and that this matter has not yet been heard or determined by a criminal court. However, in his evidence at the hearing, the Applicant admitted that he was involved in two incidents in prison and that he has not fully addressed his violent and aggressive behaviour. On the evidence before it, the Tribunal finds that the Applicant is continuing to associate with individuals who are a bad influence on him and continues to conduct himself in a manner that is both aggressive and violent, even when he is not intoxicated.
The Tribunal finds that it is neither appropriate or necessary for it to make any findings of criminal responsibility in relation to the Applicant’s conduct during his imprisonment and in immigration detention. However, it is open to the Tribunal to draw inferences from the evidence before it, including the NSW Justice Department and VIDC reports detailed above. In Brown v Minister for Immigration and Border Protection [2010] FCAFC 33 (Brown) the Full Court of the Federal Court found that the Tribunal engaged in a permissible form of reasoning in having regard to housing department records and police intelligence reports and finding these tended to confirm, rather than refute, the inference that the activities in respect of which the appellant had been convicted reflected a pattern of criminal activity. The Court confirmed that it was a matter for the Tribunal to determine how much weight it should give the housing departments records and police intelligence reports: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 per Mason J. The Court in Brown noted, at [41], the Tribunal’s remarks that that “when there is a substantial number of reports from a wide variety of sources all detailing similar conduct, the probability that the picture created is true markedly increases”.
The Tribunal further finds that the Applicant’s pattern of aggressive and violent behaviour has continued despite the support of his parents and siblings who gave evidence that they have provided him with considerable advice and support from when his aggressive behaviour first became a problem when he was at school, and during his various court attendances and his time in prison and in immigration detention. Despite the considerable effort made by his family members to support and advise the Applicant over the course of many years, there is little to indicate that he has heeded this advice and taken active steps to address his aggressive behaviour or that he has been rehabilitated in the period during which he has been in prison and immigration detention. The Tribunal finds that there is little to indicate that the Applicant’s behaviour would change if he were to be permitted to return home and live with his family. Whereas his family clearly sincerely believe that the Applicant is a changed person since the time of his offences and following his incarceration, their belief in him and his rehabilitation is not borne out by the evidence of his continued pattern of aggressive behaviour culminating with him being charged with common assault in May 2017.

The Tribunal has had regard to the other character statements in support of the Applicant and notes that these do not refer to the specifics of his offences nor do they have regard to his recent behaviour in prison and immigration detention. Accordingly, the Tribunal has placed limited weight on these statements in reaching its findings in relation to the risk to the Australian community should the Applicant re-offend.
On the basis of the evidence before it, the Tribunal finds that there is a not insubstantial risk of the Applicant engaging in further criminal or other serious conduct involving violence and aggressive behaviour, and having regard to paragraph 13.1.2 of the Direction, the Australian community’s tolerance for any risk of future harm is lower in view of the seriousness of the increased potential harm of such behaviour. The Tribunal therefore finds that the Applicant presents a risk to the Australian community.
For the reasons above, and applying the guidance in paragraphs 13.1.2(1) and (2) of the Direction, the protection of the Australian community strongly weighs in favour of not revoking the Mandatory Visa Cancellation Decision.
The best interests of minor children in Australia affected by the decision
Primary Consideration 2 of Part C in paragraph 13.2(1) requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.[7] In considering the best interests of the child, paragraph 13.2(4) provides:
[7] Direction No. 65 at [13.2(2)]
In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and the duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Having regard to the factors outlined in paragraph 13.2(4) above, the Tribunal notes that the Applicant has a younger sister, who is currently aged 16 years and who is completing her Year 11 studies. The Tribunal has had regard to the nature and duration of the relationship between the Applicant and his younger sister, and notes that she describes him as like a second ‘father figure’ in her life. The Applicant’s younger sister lives at home with her parents and older sister and brother who are her primary care-givers. In his written submissions, the Applicant accepts that he does not currently play a parental role to his younger sister.
Having regard to paragraph 13.2(4)(d) and (e) above, the Tribunal notes that the Applicant’s younger sister claims she will be ‘heartbroken’ if her brother is returned to New Zealand. The Tribunal finds that, whereas the Applicant’s younger sister has a close relationship with her brother, he does not play a parental role in relation to his sister, and that the support and care she needs to complete her schooling and until she turns 18 years of age, is available to her at home where she lives with her parents and other siblings. In addition, the Applicant will be able to maintain contact with his sister via phone, messaging and Facebook should he return to New Zealand, and therefore will be able to continue her close relationship with him by these means of communication.
The evidence before the Tribunal is that the Applicant is an uncle to his first cousin’s five young children with whom he shares a ‘close affiliation’. He accepts that he does not play a parental role with respect to these nieces and nephews. His evidence to the Tribunal is that he sees these children intermittently and on special occasions such as birthday celebrations. Having regard to paragraph 13.2(4)(e) of the Direction, the Tribunal finds that as the Applicant has a non-parental role in these children’s lives, that less weight is to be afforded to their best interests in its deliberations.
The Applicant is also an uncle to his brother’s two-year old son, and the evidence is that he loves and cares for his nephew and has assisted in baby-sitting him on weekends when his nephew stayed at his parents’ house while his brother was working. However, the evidence is that his nephew’s primary caregivers are his parents and his grandparents, and that the Applicant does not play a parental or other significant role in his nephew’s life. Accordingly, for this reason, the Tribunal finds that less weight is to be given to his nephew’s best interests in considering this aspect of the Direction in making its decision.
Having regard to paragraph 13.2(4)(c) above, the Tribunal finds that whereas the Applicant has a close relationship with his sister and his nieces and nephews, his previous criminal activity and the potential for him to continue to engage in aggressive and violent behaviour is likely on balance to have a negative impact on these children, and is not therefore in their best interests.
For the reasons above, and applying the guidance in paragraph 13.2(4) of the Direction, the second primary consideration of the best interests of minor children weighs in favour of not revoking the Mandatory Visa Cancellation Decision.
The expectations of the Australian community
Primary Consideration 3 of Part C in paragraph 13.3(1) states:
The Australian community expects non-citizens to obey Australia’s laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
As Deputy President Forgie observed in Rabino and Minister for Immigration and Border Protection (Migration) [2016] AATA 999 (Rabino) at [61]:
[t]his paragraph is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but its specificity stops at that point. It leaves open, for example, what is an “unacceptable risk” that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa.
The Direction does not refer to studies or other evidence which may guide the decision-maker in relation to public attitudes and values in determining the expectations of the Australian community: Candemir and Minister for Immigration and Border Protection (Migration) [2017] AATA 531 (Candemir) at [61]. This is therefore a matter ultimately for the decision-maker to determine having regard to guidance found in existing jurisprudence.
In Re Do and Minister for Immigration and Border Protection, Deputy President McCabe made the following observations in relation to paragraph 13.3(1):
A decision-maker is, to some extent, required to guess at the community’s expectations… I must form my view having regard to contents of the Direction (which is, after all, a statement prepared by the community’s elected representatives), the sentencing remarks of the court and common sense. As I begin my deliberations, I assume the Australian community would be fair-minded and mature… The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done.[8]
[8] [2016] AATA 390, [23].
In Anaki and Minister for Immigration and Border Protection (Migration) [2016] AATA 693 at [89] the Tribunal observed:
The consideration of Australian community expectation allows, impliedly at least, reasonable judgement by a decision-maker, bringing appropriate perspective and proportionality to bear in the assessment of risk. Furthermore, the expectation must be considered contextually, relative to factors arising in relation to other principles set out in [paragraph] 6.3 of the Direction 65.
The Tribunal finds that in determining the scope of its discretionary power, particularly in relation to the ‘expectations of the Australian community’ in paragraph 13.3(1) of the Direction, it is necessary to have regard to the “subject-matter, scope, and purpose of the legislation granting the power to make that discretionary decision.”[9]
[9] Rabino and Minister for Immigration and Border Protection [2016] AATA 999 [63] citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299; 60 ALJR 560 at 39-40; 309; 565 per Mason J with whom Dawson J agreed. See also R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45; 27 ALR 321; 54 ALJR 94 at 49; 325; 95-96 per Stephen, Mason, Murphy, Aickin and Wilson JJ citing with approval Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505
Accordingly, in this context, it is necessary to be mindful of the subject matter, scope and purpose of the Migration Act in determining the limits of the relevant discretionary power. These were identified by Deputy President Forgie in Rabino as follows:
The purpose of the Migration Act is to regulate those who may come to and those who may remain in Australia and the circumstances in which they may do so. There are various types of visa, some of which permit a person to remain on a temporary basis and others which permit a person to remain permanently. Parliament has decided that those who have committed offences attracting certain penalties may be refused a visa or have a visa cancelled and, in some instances, must be refused a visa or have a visa cancelled. Against that background, the Minister has developed considerations in the Direction that are consistent with the Migration Act’s subject-matter, scope and purpose.[10]
[10] at [64].
Against this background, the Objectives, General Guidance and Principles contained in paragraphs 6.1 to 6.3 of the Direction are of specific relevance in determining the ‘expectations of the Australian community’ pursuant to paragraph 13.3(1): Rabino at [65]. The Principles in particular are, within their parameters, “directed to whether the Australian community is prepared to give the person another opportunity to remain in Australia.” Rabino at [68].
The Tribunal has had particular regard to paragraph 6.3(5) of the Direction that states:
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.
(Emphasis added)
In view of this Principle and the fact that the Applicant arrived in Australia as a three-week-old baby, the Tribunal found in Candemir, at [63] that “the Australian community would anticipate a nuanced approach to considering the extent to which the applicant is a member of the Australian community even though he is not an Australian citizen. It would expect that the applicant’s adverse and antisocial behaviour would be carefully weighed against any positive contributions to society, such as employment and/or family relationships.”
The Applicant has lived in Australia virtually all his life and completed all of his schooling in Australia, with the exception of the period of time he spent in Tonga in 2012. All of his familial and social relationships are founded in Australia, and he has only visited New Zealand on one occasion on holiday with his parents when he was 10 years old. His limited work experience has been in Australia, most of which has been family-connected employment.
The Applicant’s criminal history and behaviour in prison and immigration detention has been extensively described above in the Tribunal’s consideration of the Protection of the Australian community. It is reasonable to assume that the Australian community would believe that the Applicant has demonstrated his disregard for Australian law, its important institutions and its law enforcement framework, and that he has not respected the privilege conferred on him that is afforded by the grant to a non-citizen of an Australian visa entitling them to permanently remain in Australia.
Accordingly, while the Tribunal acknowledges that the Australian community affords greater tolerance for a non-citizen such as the Applicant who has spent virtually all of his life in Australia, the Tribunal finds that as a consequence of the serious crimes he committed that led to his imprisonment in March 2016, particularly against a police officer in the performance of his duty, and his continuing aggressive and violent behaviour in prison and immigration detention, that he should expect to forfeit the privilege of staying in Australia which his visa confers.
The Tribunal therefore finds that the third primary consideration does not support the revocation of the Mandatory Visa Cancellation Decision.
Other considerations
While the primary considerations carry particular weight, the Direction acknowledges at paragraph 14 that other considerations must be taken into account by the decision-maker where relevant.
The five other considerations are summarised in paragraph 14(1):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
International non-refoulement obligations
A non-refoulement obligation is an obligation not to require a person to return, deport or expel a person to a place where he or she will be at risk of a specific type of harm. There is no suggestion that the Applicant is at risk of harm of the nature that raises Australia’s non-refoulement obligations under the 1951 Convention on the Status of Refugees as amended by the 1967 Protocol (Refugee Convention). Therefore, the Tribunal finds that this consideration does not arise on the evidence in this case.
Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
…Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen has arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The evidence before the Tribunal is that the Applicant has substantial ties to Australia having arrived here as a three-week-old baby and having all of his immediate and extended family residing in Australia. However, having regard to paragraph 14.2(1)(a) the Tribunal notes that less weight should be given to this consideration because the Applicant commenced offending at age 15.
The evidence is also clear that the impact on his family of the Applicant returning to New Zealand will be significant, and that his parents and siblings in particular will be detrimentally affected by the physical separation between them and their son and brother. However, there is no evidence before the Tribunal to indicate that his family would not be permitted to visit the Applicant in New Zealand or that they could not relocate to New Zealand should they wish to do so. Whereas it is evident that the family are not persons of significant financial means, his parents visited both New Zealand and Tonga in 2016 for a school reunion and to visit the Applicant’s grandmother. The evidence also demonstrates that when the Applicant has lived overseas in the past, namely when he was in Tonga in 2012, his family members stayed in regular contact with him via phone, text messages and Facebook, and there is nothing to suggest that they would not be able to maintain regular contact with him if he returns to New Zealand.
On balance, the Tribunal finds that the impact on the Applicant’s family members, who are either Australian citizens or permanent residents, does weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivers an important service in Australia.
The Tribunal finds that there is no specific evidence on this issue and the Applicant does not claim that any Australian business interests would be affected by his removal to New Zealand.
Impact on victims
Paragraph 14.4(1) of the Direction states:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Tribunal finds that there is no evidence of any potential impact on the victims of the Applicant’s criminal activity of a decision not to revoke the Mandatory Visa Cancellation Decision.
Extent of impediments if removed from Australia/not permitted to return
The Direction states in paragraph 14.5(1) that:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.”

The Applicant claims that if he is returned to New Zealand that he will have no family support, nowhere to live, no employment, and no friends. He is not in contact with his two cousins who are in New Zealand, and he has no other relatives there. He will find it challenging to make his way in New Zealand without the support of his immediate family, all of whom reside in Australia. However, the Tribunal finds that, whereas the Applicant will face some initial difficulties in establishing himself in New Zealand and maintaining basic living standards, these are not insurmountable obstacles. The Applicant is a young man who has ambitions to undertake further study and advance his career, both of which are options for him as a New Zealand national and a person who has previous work experience, including in various construction-related industries. He will not face any language or cultural barriers on his return, and he will have the same access to welfare and medical treatment as all New Zealand nationals, including to the medication he requires for his epilepsy.
On balance, the Tribunal finds that the impediments the Applicant will face if he is removed from Australia weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
Conclusion
In summary, the three primary considerations weigh strongly in favour of non-revocation of the Mandatory Visa Cancellation Decision. In particular, the nature and seriousness of the Applicant’s offences and the risk of him re-offending that is illustrated by his past criminal offences and the continued pattern of aggressive and violent behaviour since his imprisonment and immigration detention. Whereas the Applicant clearly regrets his past criminal behaviour, his apparent lack of appreciation of the consequences of his continuing aggressive behaviour, coupled with his failure to complete courses and programs in prison designed to address this behaviour, indicates that there is a not insubstantial risk of him re-offending. The best interests of minor children is a relevant consideration given the Applicant’s close relationship with his younger sister, nieces and nephews, however he does not play a parental role in relation to any of these children, and it should not readily be accepted that any role he does play is a positive one.
In regard to the other considerations, the strength, nature and duration of the applicant’s ties to Australia weighs in favour of revocation of the Mandatory Visa Cancellation Decision. Similarly, the extent of the impediments the Applicant will face if he is removed from Australia on balance also weighs in favour of revocation.
The Tribunal finds that as the three primary considerations weigh strongly in favour of non-revocation of the Mandatory Visa Cancellation Decision, and that while the other considerations weigh in favour of revocation, these are not sufficient to outweigh the primary considerations which support non-revocation of the Mandatory Visa Cancellation Decision.
DECISION
The Tribunal affirms the reviewable decision of the Minister’s delegate not to revoke the Mandatory Visa Cancellation Decision in respect of the Applicant.

I certify that the preceding 149 (one-hundred-forty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

......................................[sgd]..................................
Associate
Dated: 4 September 2017

Date(s) of hearing: 9 May 2017

Applicant: In person

Solicitors for the Respondent: Ms M Wells, Sparke Helmore

[2017] AATA 1425

4 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Date(s) of hearing:	9 May 2017
Applicant:	In person
Solicitors for the Respondent:	Ms M Wells, Sparke Helmore