Turanga and Minister for Home Affairs (Migration)

[2018] AATA 871

Turanga and Minister for Home Affairs (Migration) [2018] AATA 871 (12 April 2018)

Division:GENERAL DIVISION

File Number(s):      2018/0395

Re:John Turanga

APPLICANT

Minister for Home AffairsAnd  

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:12 April 2018

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 delegate’s decision to cancel the applicant’s visa should be revoked under section 501CA(4) of the Migration Act 1958 – applicant does not pass character test – substantial criminal record – progressively serious and violent offending – no other reason why original decision should be revoked – decision affirmed

LEGISLATION

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

CASES

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

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

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

Dr L Bygrave, Member

12 April 2018

INTRODUCTION

1. The applicant, Mr John Turanga, is 48 years old and a citizen of New Zealand. He first arrived in Australia on 24 February 1989 and, since that date, has held various class TY subclass 444 special category (temporary) visas.

2. The applicant’s visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) (the Act) on 22 March 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 14 April 2017, the applicant made representations seeking revocation of the mandatory visa cancellation decision under subsection 501CA(4)(a) of the Act. He made further representations on 28 December 2017.

4. The Minister’s delegate decided on 18 January 2018 not to revoke the cancellation decision and, on 29 January 2018, 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 4 April 2018. 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 1969.

7. He told the Tribunal that he came to Australia in 1989, when he was 19 years old, with his family. He has two sisters who currently reside in Queensland and Western Australia, and other extended family members in Australia. The applicant’s father passed away in 2011. His mother, two brothers, another sister and his adopted sister live in New Zealand. The applicant’s evidence to the Tribunal is that he last saw his sisters at his father’s funeral but stays in touch with family members by telephone. He was adamant that he did not want financial or other support from his family members.

8. The applicant attended boarding school in New Zealand. He obtained employment on arrival in Australia and held various construction and manual jobs from 1989 to 1994.

9. The applicant told the Tribunal he used cannabis on a daily basis from when he was 16 years old until he went to jail in 2016. He was diagnosed with ADHD ‘as a child’. He has also been diagnosed with various mental health conditions since 1994, including bipolar disorder, schizophrenia and paranoia. He developed a gambling addiction with poker machines from 1996. He began taking methamphetamines (ice) from about 2002. He said he used any wages or social security payments to pay for his drug and gambling addictions.

10. Since 2001, the applicant has been homeless, staying at the Mathew Talbot hostel in Woolloomooloo and living on the streets. He has had some periods of employment, namely as a cleaner with HopeStreet Employee Training Programme and working in kitchens. At the Tribunal hearing, the applicant said that his support networks are in the Woolloomooloo area; he has attended the Woolloomooloo Baptist Church and has connections with the St Vincent de Paul Society.

11. The applicant has only returned to New Zealand on three occasions, for short periods of time, since 1989.

    Criminal record

12. The applicant’s National Police Certificate dated 23 March 2017 shows he was convicted of 35 offences as an adult between 1988 and 2017. These include the following criminal offences:

    ·22 February 1990 – conviction in Redfern Local Court: larceny as a servant – fine.

    ·6 June 2002 – conviction in Downing Centre Local Court: assault occasioning actual bodily harm, and larceny – section 9 bond.

    ·30 August 2004 – conviction in Downing Centre Local Court: possession of equipment for administering prohibited drugs, possess prohibited drug, and custody of knife in public place – fines.

    ·14 January 2005 – conviction in Downing Centre Local Court: possession of equipment for administering prohibited drugs, self administer/attempt self administer prohibited drug, custody of knife in public place, goods in personal custody suspected being stolen (not motor vehicle), and contravene apprehended violence order (two counts) – fines.

    ·28 August 2014 – conviction in Downing Centre Local Court: possess prohibited drug – fine.

    ·17 October 2014 – conviction in Downing Centre Local Court: intimidate police officer in execution of duty, stalk/intimidate intend physical etc harm (personal) – imprisonment 8 months suspended on enter section 12 bond.

    ·19 April 2016 – conviction in Downing Centre Local Court: assault occasioning actual bodily harm, possess prohibited drug – section 9 bond.

    ·21 June 2016 – conviction in Downing Centre Local Court: behave in offensive manner in/near public place/school – fine.

    ·27 February 2017 – conviction in Central Local Court: assault occasioning actual bodily harm (two counts), larceny, possess prohibited drug (two counts) – imprisonment 12 months.[1]

    [1] Exhibit G5, pages 21-23.

13. There is no evidence before the Tribunal that the applicant has offended while in jail or immigration detention.

    RELEVANT LEGISLATION AND ISSUES

    The power to revoke a visa cancellation

14. 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.

15. 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’.

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

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

18. 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).

19. 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.

20. 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.

21. 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.

22. 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.

23. 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

24. 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.

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

26. The applicant’s criminal record, which is set out in part in paragraph 12, shows he has been convicted of committing offences from 1988 to 2017.

27. In a written statement on 28 December 2017, the applicant acknowledged that most of his criminal offending related to the possession of drugs for personal use. He also accepted that he had a number of offences relating to offensive behaviour in a public place and an offence in relation to intimidating a police officer. He explained that these offences occurred when he had been drinking or had taken drugs and he is ‘deeply ashamed’.[2]

    [2] Exhibit G10, page 47.

28. I note that the applicant’s offending behaviour until 2014, although including counts of assault occasioning bodily harm, larceny, possession of drugs and contravening apprehended violence orders, only resulted in the Court imposing fines and a section 9 good behaviour bond.

29. The evidence shows, however, that the frequency and the seriousness of the applicant’s offending escalated from 2014.

30. The applicant was convicted in the Downing Centre Local Court on 17 October 2014 of offences relating to ‘intimidate police officer in execution of duty’ and ‘stalk/intimidate intend fear physical etc harm’ and sentenced to eight months imprisonment suspended on entering section 12 good behaviour bond. The New South Wales (NSW) Police facts sheet described incidents on 27 January 2014 in which:

    ·the applicant smoked cannabis with his neighbour;

    ·several hours later, after his neighbour left the applicant’s apartment, the applicant became physically and verbally abusive towards his neighbour and his neighbour’s partner;

    ·the applicant’s neighbours became so fearful of their lives that they called the police;

    ·the applicant left the scene and was later located by police;

    ·the applicant was agitated and abusive towards police, and police then used capsicum spray to subdue the applicant;

    ·the applicant verbally threatened a police officer.[3]

    [3] Exhibit TB1, pages 56-59.

31. At the Tribunal hearing, the applicant disputed some of the facts before acknowledging that he could not recall the whole incident because he had taken Xanax tablets which affected him ‘badly’. The applicant’s threatening behaviour was prompted because he thought his neighbour had stolen money from him; he later realised that he had placed the money in other clothes. He acknowledged to the Tribunal that he ‘loses his temper’ and it’s ‘not good’.

32. On 19 April 2016, the applicant received a section 9 good behaviour bond for the offence ‘assault occasioning actual bodily harm’, which involved 18 months to attend counselling, educational development and drug or alcohol rehabilitation. The NSW Police facts sheet related to this offence described the applicant kicking a homeless person who was lying down in the arm, causing pain and a cut to the elbow.[4]  The applicant told the Tribunal that he knew the victim and his physical assault was provoked by the victim ‘yahooing and yelling’ at the applicant and his girlfriend.

    [4] Exhibit TB2, pages 134-136.

33. While serving the good behaviour bond imposed for the offence described in paragraph 32 above, the applicant was sentenced in 2016 for a further offence of ‘assault occasioning actual bodily harm’ and larceny. The sentencing remarks of Magistrate Schurr on 27 February 2017 described the applicant’s assault offence on 17 September 2016 as follows:

    [Mr Turanga approached a] volunteer assisting the homeless and hitting him in the face, causing the lip and mouth to bleed and pain and suffering by the person who was doing no harm to anybody… [At] the time Mr Turanga was on a bond for assaulting a man, also another homeless man who was lying on the ground, and Mr Turanga kicked him in the arm, for which he was placed on a good behaviour bond in April last year and he has breached that bond by a further assault on someone who was not at all, it appears on the surface, again was doing no harm to anybody.

    …

    The assault on the volunteer worker on 17 September, it was, I suppose in the words of the media, a coward punch. The volunteer, a young gentleman, was looking away, looking to give Mr Turanga something to eat or drink when he was hit without reason by Mr Turanga and suffered that injury, and the many aggravating features…[5]

    [5] Exhibit G6, pages 24-25.

34. Magistrate Schurr noted the applicant’s drug use and mental illness as follows:

    There is some hint that perhaps part of Mr Turanga’s problem is his mental illness and that he has been diagnosed with schizophrenia, although he is also diagnosed with drug dependence, particularly using ice and also cannabis, but these agents, together with his illness, have caused him to commit these serious offences.

    …

    When he is taking drugs, and his mental illness, he is a danger to the community…[6]

    [6] Exhibit G6, pages 24-25.

35. In her sentencing remarks, Magistrate Schurr also recorded a conviction and sentenced the applicant to six months imprisonment for stealing from a fellow poker player when he left his poker machine with $560 credit and the applicant ‘went over and printed out a document that enabled [him] to collect the winnings’.[7]

    [7] Exhibit G6, page 25.

36. The applicant further told the Tribunal that, while his offending convictions relate to his possession of prohibited drugs for his personal use, he also sold illegal drugs for ‘about a year’ in 2015 and 2016. This is supported by the applicant’s NSW Police records, which describe the applicant on 3 November 2015 as a person of interest and ‘well known to police for the sale of illegal drugs’.[8] I note, however, that the applicant has not been convicted of any offences relating to the sale of illegal drugs.

    [8] Exhibit TB3, pages 229.

37. 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. Although the applicant was first sentenced to imprisonment on 27 February 2017, he has received section 9 and section 12 good behaviour bonds and multiple fines since 1988.

    ·The applicant’s record of criminal offending shows he has been involved in 35 offences as an adult; of concern, the applicant’s record reflects a pattern of 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.

    ·There is no evidence before the Tribunal that the applicant has committed any offences since his incarceration in jail in 2016 or since his visa was cancelled in March 2017.

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

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

40. In a written representation to the Minister dated 28 December 2017, the applicant’s solicitor stated that:

    Mr Turanga accepts that his offending is serious. In his statement he has expressed remorse/contrition and discusses his efforts towards rehabilitation. While detained, he actively participated in programs aimed at rehabilitation and states that he has not taken any drugs or other substance in over 18 months. The programs he attended were directed at managing anxiety, detention fatigue and drug rehabilitation.

    Mr Turanga states that he is determined to live a life free from drugs and trouble. He has made significant achievement towards rehabilitation and would continue to have the support of St Vincent de Paul and the Woolloomooloo Baptist Church.[9]

    [9] Exhibit G9, page 42.

41. The applicant provided a letter of support dated 18 October 2017 from the Reverend Ken Hall, the Pastor of Woolloomooloo Baptist Church, which stated that he has known the applicant for about six years and was aware of the applicant’s ‘recent Australian residency issues’.[10] Reverend Hall offered to provide the applicant with ‘continuing moral support, guidance and participation in the life of the church’ if he was to return to Sydney.

    [10] Exhibit G12, page 53.

1. A letter of support from Mr Jamie Lehn (Case Manager at St Vincent de Paul Society NSW Support Services) dated 27 February 2017 noted that he was aware of the issues that placed the applicant in custody and offered him support when he is released from custody ‘alongside intensive case management to assist John in moving forward and increasing positive participation in the community’.[11]

   [11] Exhibit TB2, page 90.

2. The applicant also provided letters from his sister and a long-term family friend; each of these letters referred to the applicant’s mental health issues, homelessness and his attendance at church. A letter from a previous activities officer and welfare worker dated 7 March 2018 noted that she knew the applicant very well from 2005 to 2009 and found him to be ‘consistently kind, courteous, hard-working, trustworthy, meek, gentle, caring and a wonderful friend’.[12] While I have regard to these letters, I can only place limited weight on this information because there is no evidence that these friends and family members were aware of the extent of the applicant’s criminal offending.

   [12] Exhibit A1.

3. A psychiatrist report prepared for the courts is also before the Tribunal. Dr Anthony Henderson (consultant forensic psychiatrist) provided a report dated 10 August 2015. Although Dr Henderson reported the applicant was ‘unable to provide a comprehensive history’, he recorded the applicant’s mental health history and diagnoses of bipolar disorder and schizophrenia, and his ‘significant substance use history’.[13]

   [13] Exhibit TB2, pages 92-93.

4. Dr Henderson opined that the applicant suffers from schizophrenia and his ‘mental illness is characterised by paranoid delusions, delusions of mind-reading, auditory hallucinations, serious disorder of thought form and irrational behaviour’.[14] He noted the applicant has poor social and occupational functioning. Dr Henderson also opined that the applicant is suffering from ‘substance use disorder – stimulant and cannabis type’. He stated that the applicant did not present at the time of assessment as ‘a significant risk of harm to himself or others and would not be considered a mentally ill person’.[15] Dr Henderson concluded that he ‘believed Mr Turanga’s mental illness and condition caused or contributed to his offending’.[16]

   [14] Exhibit TB2, page 95.

   [15] Exhibit TB2, page 95.

   [16] Exhibit TB2, page 96.

5. A letter from Ms Felicity Sullivan (Counsellor, Stimulant Treatment Program at St Vincent’s Hospital) dated 7 October 2016 reported that:

   Since May 2014 Mr Turanga has routinely attended the service seeking assistance and counselling. He has done this in a voluntary capacity, indicating to staff the value he places on his health and recovery. We have also referred him to Gorman House detoxification program when he has had additional health needs.

   Mr Turanga has formed a positive therapeutic relationship with the team here and we encourage every opportunity for him to continue his work with us.[17]

   [17] Exhibit TB2, page 89.

6. Mr Greg Owen (Health Promotion Officer, Ozanam Learning Centre) wrote on 7 October 2016 that the applicant had recently begun attending the SMART Recovery group voluntarily.[18] There are also letters from Neami Way2Home and Dr Nicholas Burns (consultant psychiatrist) offering assistance to the applicant.

   [18] Exhibit TB2, page 101.

7. A pre-sentence report dated 2 December 2016 assessed the applicant as a ‘medium risk of reoffending’, noting his identified criminogenic needs are education/employment, financial, accommodation, leisure/recreation, alcohol/drug problems, emotional/personal and attitude/orientation.[19]

   [19] Exhibit TB2, page 143.

8. At the Tribunal hearing, the applicant repeatedly said that he had changed. He said that he had stopped using drugs since being in jail, even though illicit drugs were readily available. The applicant outlined his plans if he was released from detention. He said that he would return to the Woolloomooloo area, as this is where his support networks are. He mentioned that he would like to study IT at university but would only be able to work part-time because of his mental health. He informed the Tribunal that his current medication (Pristique) is effective in managing his depression. He intends to reside at the Mathew Talbot hostel and rely on social security benefits at least in the short-term.

9. I accept the applicant has some plans for his future in Sydney and he has submitted letters of support from case workers, medical staff and his local Pastor in the Woolloomooloo area. These letters indicate there are people and organisations willing to support the applicant on his release. However, I am not convinced that the applicant, in returning to the location where he was homeless and addicted to drugs for almost 16 years, would not resume these circumstances. When the facts of the applicant’s serious offences were put to him for comment at the Tribunal hearing, he alternately blamed his behaviour on other people and expressed extreme remorse and contrition. It was difficult to ascertain whether he fully understood and accepted responsibility for the seriousness of his offending behaviour.

10. 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, although exacerbated by his mental illnesses and drug dependency and abuse, suggests he has a limited understanding about the consequences of his behaviour on others.

11. Although the applicant acknowledged that his drug and gambling addictions have influenced his behaviour and he stopped using drugs when he was imprisoned approximately 18 months ago, his drug and gambling 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 assault occasioning actual bodily harm and contravening apprehended violence orders.

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

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

13. The applicant confirmed to the Tribunal that he does not have any children and so this primary consideration is not relevant to this matter.

    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].[20]

    [20] 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 20 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.’[21] I must 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.

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

17. Although the applicant has lived in Australia as an adult for 29 years, the evidence before the Tribunal is that he was employed full-time for about five years between 1989 and 1994 and later undertook sporadic casual work as a cleaner and kitchen worker.

18. I accept that the applicant has suffered from significant mental health issues, including bipolar disorder, schizophrenia and paranoia, which contributed to his circumstances of homelessness from 2001. I also note that the applicant has had financial support through the receipt of social security benefits, and multiple organisations have provided him with medical support and counselling. I recognise there is some evidence that the applicant abstained from illicit drug use between about 2005 and 2011; this is reflected in the applicant’s criminal record as a period of no offending.

19. Unfortunately, however, the applicant has been convicted of 35 criminal offences since his arrival in Australia. I note it is concerning that his pattern of offending became increasingly frequent and serious from 2014.

20. While I have sympathy for the applicant’s mental health and drug and gambling addictions, I find that these circumstances do not excuse his criminal offending particularly in view of the extensive support he has been provided by the Australian community.

21. I believe the Australian community would have limited consideration for the applicant’s contributions given the frequency and seriousness of his crimes over 28 years. On balance, I am satisfied the third primary consideration counts against revoking the mandatory cancellation under section 501CA of the Act.

    Other considerations

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

23. 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.

24. 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.

25. The applicant has two sisters and extended family residing in Australia. Although the applicant speaks to his sisters monthly on the telephone, he has not seen them since 2011.

26. At the Tribunal hearing, the applicant referred to the community and church in the Woolloomooloo area as his ‘support network’. I accept that he has close ties to this community; the letters of support from staff and organisations demonstrate the applicant’s potential support if he is released from detention. I note, however, there is no evidence that the applicant’s removal from Australia would have any adverse impact on these persons.

27. I also find that, although the applicant left New Zealand 29 years ago and has only returned for three short periods, his mother and four of his siblings currently reside in New Zealand.

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

29. The impediments to removing the applicant from Australia rely on his desire to remain in Australia. The applicant told the Tribunal that he was a ‘sickly child’ and he finds New Zealand ‘cold’. Based on the evidence before the Tribunal, I am satisfied that the applicant 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.

30. I find that there are no substantial impediments that would prevent the applicant commencing a life in New Zealand.

    CONCLUSION

31. The first and third primary considerations weigh against the applicant, and the second primary consideration is not relevant to this matter.

32. In regard to the other considerations, the applicant’s ties to Australia weigh in his favour and the impediments to his removal from Australia weigh against him. However, the weight I 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 (seventy -five) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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

Associate

Dated: 12 April 2018

Date(s) of hearing:	4 April 2018
Applicant:	In person
Solicitors for the Respondent:	A Keevers, Sparke Helmore Lawyers