Tohu and Minister, Immigration and Border Protection (Migration)

[2017] AATA 2710

Tohu and Minister, Immigration and Border Protection (Migration) [2017] AATA 2710 (19 December 2017)

Division:GENERAL DIVISION

File Number:2017/6108           

Re:Manuel Tohu  

APPLICANT

Minister, Immigration and Border ProtectionAnd  

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member  

Date:19 December 2017

Place:Sydney

The Tribunal affirms the decision under review.

.......................[sgd].................................................

Dr L Bygrave, Member

CATCHWORDS

IMMIGRATION – Class TY Subclass 444 Special Category (Temporary) visa – whether the delegate’s decision to cancel the applicant’s visa should be revoked under section 501CA(4) of the Migration Act 1958 – the applicant does not pass the character test – substantial criminal record – there is no other reason why the original decision should be revoked – decision affirmed

LEGISLATION

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

Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

CASES

Anaki and Minister for Immigration and Border Protection [2016] AATA 693

Do and Minister for Immigration and Border Protection [2016] AATA 390

REASONS FOR DECISION

19 December 2017 

INTRODUCTION

1. The applicant, Mr Manuel Tohu, is a citizen of New Zealand. He arrived in Australia on 4 December 1994 and was granted a Class TY Subclass 444 Special Category (Temporary) visa.

2. The applicant’s visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) (the Act) on 18 May 2017 on the basis that he did not pass the character test because he had been sentenced to a term of imprisonment of 12 months or more and therefore had a ‘substantial criminal record’ as defined in section 501(7) of the Act.

3. On 30 May 2017, the applicant made representations seeking revocation of the mandatory visa cancellation decision under subsection 501CA(4)(a) of the Act.

4. The Minister’s delegate decided on 6 October 2017 not to revoke the cancellation decision and, on 13 October 2017, the applicant lodged an application with the Administrative Appeals Tribunal (the Tribunal) seeking a review of this decision.

5. The matter was heard in Sydney on 7 December 2017. The applicant attended the hearing and gave evidence by videoconference from Christmas Island. He did not have legal representation.

   BACKGROUND

6. The applicant was born in New Zealand in 1980. His father passed away and he moved to Australia when he was 14 years old. He lived with his mother and attended high school until year 10. The applicant told the Tribunal his mother remarried and he has younger step-sisters.

7. After leaving school, the applicant was employed in casual labouring jobs in the construction industry, and he has worked as a factory worker and a tree-lopper.

8. The applicant commenced a relationship with his ex-partner when they were 15 years old and they have seven children together. Their children were born between 1997 and 2008. The applicant and his ex-partner separated in 2008 but have maintained communication and a relationship because of their children.

9. The applicant has never returned to New Zealand.

   Criminal record

10. The applicant’s National Police Certificate dated 24 May 2017 shows he has been convicted of 44 offences between 1999 and 2014. These include the following criminal offences:

    ·2 June 2004 – conviction in Campbelltown District Court: aggravated break and enter, and commit serious indictable offence-in company, imprisonment for 21 months.

    ·13 August 2004 – conviction in Campbelltown Local Court: shoplifting value <=$2000-t2, imprisonment 4 months.

    ·25 October 2004 – conviction in Campbelltown Local Court: common assault-t2, imprisonment 1 month.

    ·16 May 2005 – conviction in Liverpool Local Court: supply a prohibited drug, imprisonment 16 months.

    ·17 June 2005 – conviction in Burwood Local Court: shoplifting value <=$2000-t2, imprisonment 2 months.

    ·4 August 2005 – conviction in Campbelltown District Court: supply a prohibited drug, conviction confirmed in lieu imprisonment.

    ·22 August 2006 – conviction in Bankstown Local Court:  goods in personal custody suspected being stolen (not m/v), imprisonment 4 months.

    ·10 October 2006 – conviction in Bankstown Local Court: use etc offensive weapon to prevent lawful detention etc-t1, imprisonment 18 months; break and enter building (steal) value <= $15000-t1, imprisonment 9 months.

    ·22 October 2010 – conviction in Sydney District Court: assault occasioning actual bodily harm-t2, imprisonment 6 months; assault occasioning actual bodily harm-t2, imprisonment 6 months; assault occasioning actual bodily harm-t2, imprisonment 6 months; aggravated robbery-si, imprisonment 2 years 10 months.

    ·9 December 2014 – conviction in Parramatta District Court: robbery in company, imprisonment (aggregate) 4 years; robbery in company, imprisonment (aggregate) 4 years; assault with intent to rob in company-si.[1]

    [1] Exhibit G, G4, pp 18-22.

11. The applicant’s record of traffic and road offences includes driving while never licensed, driving while disqualified from holding a license, using an unregistered motor vehicle and using an uninsured motor vehicle.[2]

    [2] Exhibit G, G4, pp 18-21.

12. A NSW Department of Corrective Services record of the applicant’s offences and sentences while in custody shows he:

    ·failed prescribed urine tests on 5 September 2005, 9 September 2009, 10 March 2010 and 23 February 2011;

    ·was found to have possessed and created prohibitive goods on 1 February 2007 and 13 March 2011; and

    ·was found in the possession of drugs on 9 February 2011.[3]

    RELEVANT LEGISLATION AND ISSUES

    [3] Exhibit G, G5, p 30.

    The power to revoke a visa cancellation

13. Pursuant to section 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied 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’. A person who has been sentenced to a term of imprisonment of 12 months or more has a ‘substantial criminal record’ as defined in sections 501(6)(a) and (7) of the Act.

14. Under section 501CA(4) of the Act, the Minister (and therefore the Tribunal on review) has the discretion to revoke the original cancellation decision if the Minister is satisfied that the person passes the character test or ‘there is another reason why the original decision should be revoked’.

15. The applicant has a ‘substantial criminal record’ and so does not pass the character test. This is not disputed by the applicant.

16. The Tribunal must therefore consider whether there is another reason to revoke the original cancellation decision.

17. When considering whether to revoke the cancellation decision, the Tribunal is required under section 499(2A) of the Act to have regard to the guidance contained in Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).

18. The Direction sets out the policy of the government and includes 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.

19. The Principles set out in clause 6.3 of the Direction provide a framework to approach deciding whether to cancel a visa. The Principles state:

    (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 considerations may be insufficient to justify not cancelling or refusing the visa.

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

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

    (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.

20. Informed by the Principles, the Tribunal must take into account the factors set out in Part C of the Direction in determining whether to revoke a mandatory cancellation of a non-citizen’s visa under section 501CA of the Act. The primary considerations are:

    (a)protection of the Australian community from criminal and other serious conduct;

    (b)best interests of minor children in Australia affected by the decision; and

    (c)expectations of the Australian community.

21. Part C also sets out other considerations which must be taken into account. Other considerations relevant to this matter are:

    (a)strength, nature and duration of the applicant’s ties to Australia; and

    (b)extent of impediments if the applicant is removed from Australia.

22. Clause 8(2) of the Direction stipulates that information and evidence from independent and authoritative sources should be given appropriate weight in applying the primary and other considerations.

    Protection of the Australian community

23. Clause 13.1(2) of the Direction states the Government’s commitment to protecting the Australian community from harm by non-citizens and requires that the Tribunal consider:

    (a)the nature and seriousness of the applicant’s conduct to date; and

    (b)the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.

24. I will first consider the nature and seriousness of the applicant’s conduct to date.

25. The applicant’s criminal record, which is set out in part in paragraph 10, shows he committed offences from 1999.

26. The applicant participated in a robbery and assault on 31 July 2008. The sentencing remarks of Judge King SC on 22 October 2010 described the applicant’s role in the offence as follows:

    CCTV footage…showed a group of males assaulting the victims. It depicts the offender [the applicant]…running into the altercation, and joining in the punching, kicking and brutal assault of the victims…

    Each of the victims was intoxicated, and vulnerable as a result. They were attacked by a group, of which the offender was one, and he played a significant role. The attack appears to have been an opportunistic one, there being no evidence that the offender attended the area for the purpose of committing such an offence…

    The attacks were cowardly and vicious. The three males were knocked to the ground and then kicked while unable to defend themselves. The offender joined in kicking them after they had already been brought to the ground.

    The offender’s attack on the victim…by head-butting her to the ground and subsequently hitting her with his hand when she got back up, causing her to again fall to the ground, is particularly repulsive. Her injuries were substantial: a fractured nose, a nasal deviation and injuries to her chest and eye.

    There is no evidence that the attacks were motivated by anything other than a desire to inflict gratuitous violence on vulnerable persons going about their own business, and a desire to steal what valuables they might then be carrying.[4]

    [4] Exhibit G, G7, pp 46-47.

27. The applicant was also involved in a robbery and assault with intent to rob on 1 December 2013. The sentencing remarks of Judge Yehia on 9 December 2014 noted that:

    Although this offender [the applicant] did participate in the offences by making demands, by taking hold of one of the victims and by lending assistance and encouragement to his co-offender, I am of the view that his role was less than that of [his co-offender].

    I find these offences fall in the middle of the range of objective seriousness for offences of this type.[5]

    [5] Exhibit G, G6, p 36.

28. The applicant did not dispute his involvement in these offences at the Tribunal hearing. In a personal circumstances form completed on 29 July 2017, the applicant stated his ‘offences are directly related to [his] drug abuse and [he has] been abstaining from drugs [for] approximately 18 months having been apart of a compulsory drug treatment program’.[6]

    [6] Exhibit G, G10, p 71.

29. An ‘aide memoir’ provided to the Tribunal by the respondent’s counsel reveals the applicant has been incarcerated during the following periods:

    ·May to November 2004 (approximately six months);

    ·May 2005 to February 2006 (approximately nine and a half months);

    ·July 2006 to August 2007 (approximately 13 months);

    ·September 2008 to October 2012 (approximately four years);

    ·December 2013 to present (approximately four years).

30. At the Tribunal hearing, the applicant did not dispute he was incarcerated during these periods but contended that some of the time he spent in prison after October 2008 was because he was falsely convicted of a crime for which he was later found to be not guilty. Notwithstanding this false conviction, the applicant’s criminal offences shown in his National Police Record from 1999 to 2014 include assault occasioning actual bodily harm, common assault, contravening an apprehended domestic violence order, break and enter (stealing), shoplifting and supply of prohibited drugs.

31. On 16 July 2007, the (then named) Department of Immigration and Citizenship (the Department) wrote to the applicant advising that ‘a delegate of the Minister has made a decision not to cancel your visa on character grounds at this time’. The Department also issued a formal warning that:

    …visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds.[7] [emphasis in original]

    [7] Exhibit G, G15, p 89.

32. The applicant confirmed that he received this letter from the Department in his evidence to the Tribunal.

33. Considering the relevant factors set out in clause 13.1.1 of the Direction, I find that:

    ·The applicant’s offences include committing serious and violent offences. The applicant has spent almost ten years in prison in the period from May 2004 to the present. He was sentenced to four years imprisonment for his most recent conviction.

    ·The applicant’s record of criminal offending shows he has been involved in 44 offences since 1999 and reflects a pattern of repeat offending that has become increasingly serious and violent.

    ·There has been a cumulative effect due to the applicant’s repeated offending and he has continued to offend despite warnings from police and the judicial system.

    ·The applicant continued to commit criminal offences after he was warned by the Department in 2007 that conviction for any further offences may result in the cancellation of his visa.

    ·There is no evidence before the Tribunal that the applicant has committed any offences since his visa cancellation in May 2017 or has ever provided false or misleading information to the Department.

34. I am satisfied that the frequency and long-term cumulative effect of the applicant’s criminal offending is a matter of very serious concern. I find that the nature and seriousness of his offending weighs heavily against him.

35. I must also consider the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.

36. The sentencing remarks of Judge King SC and Judge Yehia provide information about the applicant’s offending behaviour and potential for recidivism. Judge King SC observed on 22 October 2010 that the applicant has:

    …an extensive criminal history. He has served a number of terms of imprisonment. He has a history of breaching bonds and a number of parole orders resulting in revocation. His compliance with supervision is described as borderline and unsatisfactory…

    There is scant material in either the pre-sentence report or the psychological report from which it could be concluded that the offender [the applicant] is remorseful or contrite…

    The Court is unable to find there is acceptable evidence of remorse or contrition. The Court is also unable to find that there is a good prospect of rehabilitation, given the offender’s past criminal record and failure to fully comply with supervision while on bonds or parole.[8]

    [8] Exhibit G, G7, pp 49-50.

37. The sentencing remarks of Judge Yehia on 9 December 2014 noted that:

    His record affords him no leniency… I take his record into account as reflecting that the instant offences are not an uncharacteristic aberration but demonstrate a continuing attitude of disobedience of the law.[9]

    [9] Exhibit G, G6, p 37.

38. In his personal circumstances form dated 29 July 2017, the applicant stated:

    I do not believe I am no [sic] longer at risk of reoffending having completed ADD programs – I understand my triggers, my choices and will seek ongoing support.[10]

    [10] Exhibit G, G10, p 71.

39. At the Tribunal hearing, the applicant reiterated that his drug use had contributed to his offending behaviour. He explained that he had been homeless, ‘couch surfing’ and taking Zanax to deal with feeling depressed prior to his offence in December 2013. The applicant said he participated in a compulsory drug rehabilitation program in 2016 and attended courses while on Christmas Island in July and August 2017. He confirmed he had not used drugs since completing the program as he realised that drug use has contributed to his offending and subsequent imprisonment / detention in immigration.

40. The applicant provided a written statement on 2 October 2017 in which he accepted responsibility for his behaviour and stated he is remorseful.[11] He noted that his way of thinking has changed since completing the drug rehabilitation program, and he has an offer of employment and accommodation at Cana community farm on his release from detention.

    [11] Exhibit G, G13.

41. An undated written reference from Ms Julie Sneddon, CEO of Cana Communities confirmed the community ‘would be happy to continue mentoring and supporting [the applicant] to move forward with his life’.[12] However, there was no information about whether support from Cana Communities would include employment, accommodation and assistance with caring for his children.

    [12] Exhibit A1.

1. Based on the evidence before the Tribunal, I am not persuaded the applicant will not reoffend should he be released into the Australian community. His consistent pattern of serious offending, despite being a father to seven children with his ex-partner, suggests a limited understanding about the consequences of his behaviour on others.

2. Although the applicant acknowledged the influence of drugs on his behaviour and said he stopped using drugs 18 months ago, his drug rehabilitation is untested in the community. In considering the nature of the harm and potential risk to the Australian community if the applicant were to reoffend in the future, I am mindful of the nature and seriousness of his past criminal offences of common and aggravated assault.

3. On balance, I find that the protection of the Australian community weighs heavily against revoking the cancellation decision.

   The best interests of minor children in Australia affected by the decision

4. Clause 13.2(4) of the Direction sets out the factors that the Tribunal must consider in relation to whether revoking the cancellation decision is, or is not, in the best interests of a child affected by the decision. Relevant to this matter are the nature and duration of the relationship, the extent to which the applicant is likely to play a positive parental role, the likely effect any separation would have on the child, and whether there are other persons who already fulfil a parental role.

5. The applicant has seven children with his ex-partner. The eldest children are aged 19 years old and 20 years old. The younger five children are aged between 17 years old and nine years old. The applicant told the Tribunal all of his seven children reside full-time in Australia with their mother. I must consider the best interests of the five children who are under the age of 18 years.

6. The applicant’s personal circumstances form dated 29 July 2017 set out:

   The relationship and future life with my children are very love [sic] and caring. I am very proud as a father to have them in my life. Children need their father’s and I intend to be a good father who will put them first and encourage them to live a meaningful and positive life…

   The impact that it [visa cancellation] will have on my children would be traumatic and I will lose the bond and relationship I have had with them. I talk with them every day on the phone.[13]

   [13] Exhibit G, G10, p 69.

7. The applicant’s ex-partner also provided a written statement dated 30 May 2017 and briefly gave evidence at the Tribunal hearing. She wrote that the applicant:

   …has contact with the kids. If he is deported neither me or him have any money to fund trips to visit their father. If he is deported this will have a great impact on our children… I belive [sic] in the best interest [sic] of our children that he remains here instead of been [sic] deported… It will have a massive impact on our family life.[14]

   [14] Exhibit G, G11, p 75.

8. At the Tribunal hearing, the applicant’s ex-partner said she was aware of why he was in prison and is currently in detention, and confirmed that the applicant’s criminal behaviour was the reason for their separation as a couple. Nonetheless, she emphasised the applicant’s role as the father of her children and explained the younger children were looking forward to their father being released and coming home.

9. The applicant’s eldest daughter, who is 20 years old, filed a written statement on 1 December 2017.[15] The statement is thoughtful and supportive of the applicant as a father, and expresses his children’s desire for him to be released from custody. His daughter wrote that the youngest four children have had a hard time understanding about their father being in prison and potentially being deported from Australia, and this has affected their behaviour. In particular, she noted her youngest sibling has sometimes displayed aggressive behaviour that was ‘more or less from the heart’ because he wanted to be with his father; and her second youngest sibling has a health issue and suffers from being bullied at school due to an absent father. Her third youngest sibling has experienced problems with the law because he ‘doesn’t have that sense of direction or someone to be that great fatherly role model…’.

   [15] Exhibit A3.

10. The applicant’s daughter wrote the following about her father:

    Our dad plays a big role in our lives… [H]e might not have been there for the best of things majority of the time, but he was always the best father he could be to all of us. He always tried and still does and no matter what he always makes sure that no matter what he will always, always love us unconditionally and be there in the best way he can be. I’ve never really written something like this before so I really hope that this is of some help. It may not be much but it’s the truth. If he was to get deported it would break our hearts horribly & would have a huge impact on my families lives, the financial situation that is current in my family there would be possible no way we could all be able to afford to fly overseas to see him which is upsetting.[16]

    [16] Exhibit A3.

11. Having regard to the Direction, I find the applicant plays a positive parental role in the lives of his children. Despite the applicant’s extensive periods of incarceration since 2004, his children know him as their father, occasionally visited him when he was in prison and speak with him regularly on the phone. 

12. I accept that separation of the applicant from his children due to cancellation of his visa would adversely affect all of his children and particularly his five children who are under the age of 18 years. I also note that the applicant’s children continue to live with their mother, who fulfils a permanent parental role.

13. Based on the evidence before the Tribunal, I find that the best interests of minor children weigh for revoking the cancellation decision.

    The expectations of the Australian community

14. The Direction states that the Australian community expects non-citizens to obey the law. It also notes that non-revocation may be appropriate because the nature of the character concerns or offences are such that the community would expect that the person should not hold a visa (clause 13.3(1)).

15. The Direction does not refer to studies or other evidence which would enable me to formulate a precise view of public attitudes and values. I note a previous decision by the Tribunal, which states:

    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 [emphasis added].[17]

    [17] Do and Minister for Immigration and Border Protection [2016] AATA 390, [23].

16. Having regard to the Principles in clause 6.3 of the Direction (and set out in paragraph 19 above), I am mindful the Australian community anticipates a nuanced and balanced approach to considering the extent to which the applicant is a member of the Australian community even though he is not a citizen. The deliberation of Australian community expectations involves ‘bringing appropriate perspective and proportionality to bear in the assessment of risk.’[18] I therefore consider any positive contributions the applicant has made to society, such as employment, community activities and/or family relationships; and weigh this against his adverse and antisocial behaviour.

    [18] Anaki and Minister for Immigration and Border Protection [2016] AATA 693, [89].

17. The applicant has lived in Australia since he was 14 years old. He attended high school in Australia and has been employed in casual positions. However, the applicant’s extensive criminal record, which has been described in my consideration of the protection of the Australian community, has meant that he has spent more than ten years in prison and in detention since May 2004.

18. In written statements and at the Tribunal hearing, the applicant referred to his children as a motivating factor for his rehabilitation. However, the applicant continued to commit serious and violent offences despite the birth of his seven children from 1997 to 2008. The applicant also continued to commit criminal offences although he was warned by the Department in 2007 that this behaviour could result in the cancellation of his visa.

19. There are some brief references in the evidence before the Tribunal that the applicant had a traumatic childhood and more recently, that he has suffered from depression. The Australian community may view these experiences as a mitigating factor in his offending behaviour. However, given the minimal information before the Tribunal, I find that these circumstances neither excuse nor explain his criminal offending.

20. I am certain the Australian community would have limited consideration for the applicant’s behaviour given the seriousness and violence of his crimes over a long period of time. On balance, I am satisfied the third primary consideration counts against revoking the mandatory cancellation under section 501CA of the Act.

    Other considerations

21. While the primary considerations carry particular weight, the Direction acknowledges at clause 14 that other considerations must be taken into account where relevant.

22. There are no international non-refoulement obligations in this matter. The Tribunal was not provided with any evidence about the impact of the applicant’s removal on any Australian business interests. There is no evidence of any impact on victims from the applicant’s criminal behaviour.

23. I now consider the strength, nature and duration of the applicant’s ties to Australia and the extent of impediments if he is removed to New Zealand.

24. As set out in paragraphs 46 to 53, the applicant is the father to seven children with his ex-partner; his ex-partner and their children reside in Australia. The applicant told the Tribunal it will be ‘devastating’ and ‘sad’ for his children if he is removed from Australia. This view is supported by written statements from the applicant’s daughter and his ex-partner.

25. In a personal circumstances form on 2 October 2017, the applicant noted his mother resides in Australia. The applicant told the Tribunal he last spoke with his mother four weeks prior to the hearing, that she has remarried in Australia and he has younger step-sisters. There is no other information before the Tribunal regarding the applicant’s family.

26. At the Tribunal hearing, the applicant said he left New Zealand when he was 14 years old and has never returned; he knows no one in New Zealand.

27. I find that consideration of the applicant’s ties to Australia weigh in his favour.

28. The impediments to removing the applicant from Australia rely on his separation from his children. He has no medical conditions that could not be treated within the New Zealand health system. There is no information before the Tribunal that he would not be able to live and work in New Zealand.

29. While I am satisfied the applicant’s removal from Australia would be difficult for his children, I note they would be able to continue speaking regularly by telephone as they have done for many years while he was in jail. I also note that, while the family’s current financial situation prevents their travel to New Zealand, the applicant’s children may be able to fly to visit him in the future.

30. Apart from separation from his children, I find that there are no other substantial impediments that would prevent the applicant commencing a life in New Zealand.

    CONCLUSION

31. I have already indicated the first and third primary considerations weigh strongly against the applicant. The second primary consideration weighs for the applicant.

32. In regard to the other considerations, the applicant’s ties to Australia weigh in his favour and the impediments weigh against him. However, the weight I must give these other considerations is low and they do not outweigh the primary considerations.

33. In these circumstances, it is not appropriate for me to revoke the decision to cancel the applicant’s visa.

    DECISION

34. The Tribunal affirms the decision under review.

I certify that the preceding 75 paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

..........................[sgd]..............................................

Associate

Dated: 19 December 2017

Date(s) of hearing:	7 December 2017
Applicant:	By videolink
Solicitors for the Respondent:	Ms H Dejean, Australian Government Solicitor