Van Rooyen and Minister for Immigration and Border Protection (Migration)

[2016] AATA 165

Van Rooyen and Minister for Immigration and Border Protection (Migration) [2016] AATA 165 (29 February 2016)

Division	GENERAL DIVISION
File Number	2015/6392
Re	Carl Van Rooyen
APPLICANT
And	Minister for Immigration and Border Protection
RESPONDENT

DECISION

Tribunal	Deputy President J W Constance
Date	29 February 2016
Date of written reasons	21 March 2016
Place	Sydney

1.    The reviewable decision, being the decision of the delegate of the Minister for Immigration and Border Protection made 3 December 2015 not to revoke the cancellation of Mr Van Rooyen’s Class WE Subclass 010 (Bridging) visa is aside;

2. In substitution, in accordance with the provisions of subsection 501CA(4) of the Migration Act 1958 (Cth) the decision to cancel Mr Van Rooyen’s Class WE Subclass 010 (Bridging) visa made on 19 December 2014 is revoked.

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

J W Constance
Deputy President

CATCHWORDS

MIGRATION - Bridging Visa - cancellation of visa under section 501(3A) of Migration Act - Applicant sought revocation of cancellation - was the discretion to consider revocation enlivened - should the discretion be exercised given the specific circumstances of the case – primary considerations - protection of the Australian community from criminal or other serious conduct - risk of non-citizen engaging in further criminal or serious conduct - expectations of Australian community – other considerations - strength, nature and duration of non-citizen’s ties to Australia - decision set aside and substituted - decision to cancel visa revoked

LEGISLATION

Migration Act 1958 (Cth) ss 499(1),(2A), 500, 501(3A), 501CA(3),(4)

SECONDARY MATERIALS

Ministerial Direction no. 65- Migration Act 1958- Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

WRITTEN REASONS FOR DECISION GIVEN ORALLY ON 29 FEBRUARY 2016

Deputy President J W Constance

21 March 2016

INTRODUCTION

1. Mr Van Rooyen entered Australia as the holder of a temporary partner visa in March 2010 and has resided here continuously since. Immediately before 19 December 2014 he held a bridging visa associated with a second application for a partner visa.

2. In August 2014 Mr Van Rooyen was sentenced to a term of imprisonment of 18 months with a non-parole period of 12 months. On 19 December 2014 the Minister for Immigration and Border Protection cancelled Mr Van Rooyen’s visa (“the cancellation decision”) as he was satisfied that Mr Van Rooyen did not pass the character test set out in the Migration Act 1958 (Cth) and that he was serving a term of imprisonment.[1] 

   [1] The cancellation was mandatory in accordance with the provisions of subsection 501(3A) of the Act.

3. In accordance with the procedure set out in the Act, Mr Van Rooyen made representations to the Minister seeking a revocation of the cancellation decision. Mr Van Rooyen has applied to the Tribunal to review the Minister’s decision not to revoke the cancellation decision (“the reviewable decision”).

4. On 29 February 2016 I set aside the reviewable decision and decided in substitution that the cancellation decision should be revoked.  At the time I gave reasons for my decision orally.  I now give my reasons in writing.

   FACTUAL BACKGROUND

5. Unless otherwise stated the following findings of fact are based on the evidence of Mr Van Rooyen.

6. Mr Van Rooyen was born in 1980 and is now 35 years old.  He is a citizen of the Republic of South Africa. He holds the degree of Bachelor of Science (Electrical Engineering).  Following his graduation he was employed by an electrical company in Pretoris for three and a half years. In about 2005 Mr Van Rooyen left South Africa and travelled to England where he lived for five years and established his own electrical business.

7. In March 2010 Mr Van Rooyen and his partner at the time moved to Australia. In August 2010 their relationship ended. Mr Van Rooyen wrote to the Department of Immigration and advised it of this. He did not receive a response to this advice and he remained in Australia on the basis of his temporary partner visa.

8. Initially Mr Van Rooyen worked for several electrical companies until early 2011 when he set up his own electrical business.

9. In February 2011 he met his partner Ms Namer. In about March of that year they formed a defacto relationship which has continued ever since. They began saving to have the funds available for Mr Van Rooyen to apply for a partner visa based on his relationship with Ms Namer. In August 2012 he and Ms Namer commenced to live with Ms Namer’s mother, Mrs Namer, in her home.

10. From about April 2012 Mr Van Rooyen's business started to experience financial difficulties and by the end of June he had run out of money. By that time his temporary partner visa had expired and he was unable to continue to work. 

11. In Mr Van Rooyen's words “ [this]  major set back and the fact that I was now unlawful and had no permission to work really changed everything for me.  I did not know what to do, I fell into depression and felt lost with no purpose …… Instead of getting the help I needed I made the worst choice I have ever made and I turned to drugs.” [2] 

    [2]  Exhibit A1.

12. In September 2012 Mrs Namer fell ill. Ms Namer and Mr Van Rooyen cared for her. They were also faced with the need to make very difficult personal decisions concerning their own lives.

13. Mr Van Rooyen became addicted to “ice” and turned to crime to obtain drugs for himself and Ms Namer. He used stolen credit cards supplied to him by a drug-dealer to obtain money and goods, some of which he provided to the dealer in exchange for drugs. He also developed a serious gambling habit using illegally obtained funds.

14. Mr Van Rooyen was arrested in June 2013. Whilst on bail he committed further dishonesty offences to support his addiction. He was held in custody from January until June 2014 when he was again granted bail on condition that he attend Narcotics Anonymous meetings, which he did.

15. On 14 August 2014 Mr Van Rooyen pleaded guilty to a large number of charges involving dishonesty relating to property and financial dealings and the possession of goods suspected of having been stolen. Various sentences were imposed, including imprisonment for 18 months commencing on 17 January 2014 with a non-parole period of 12 months.[3]  He was imprisoned from 14 August 2014 until 16 January 2015, when he was released on parole.

    [3] Exhibit R1 p.28-29.

16. Mr Van Rooyen's bridging visa (which was associated with his application for a partner visa based on his relationship with Ms Namer) was cancelled on 19 December 2014. In the circumstances which existed, this cancellation was mandatory in accordance with subsection 501(3A) of the Migration Act.

17. Immediately upon Mr Van Rooyen being released on parole he was taken into immigration detention where he has remained since.

18. It is not in dispute that, by reason of his criminal record, Mr Van Rooyen does not pass the “character test” set out in the Migration Act.

    THE RELEVANT LEGISLATION

19. Subsection 501(3A) of the Migration Act 1958 (Cth) provides:

    (3A)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)    paragraph (6)(e) (sexually based offences involving a child); 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.

    This mandatory cancellation decision is referred to later in the Act as “the original decision”.

20. Subsection 501CA(3)provides:

    (3)  As soon as practicable after making the original decision, the Minister must:

    (a)give the person, in the way that the Minister considers appropriate in the circumstances:

    (i)     a written notice that sets out the original decision; and

    (ii)    particulars of the relevant information; and

    (b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

21. Subsection 501CA(4) provides:

    (4)  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.

22. The power of the Tribunal to review the decision to cancel Mr Van Rooyen’s visa is provided by section 500. 

    DIRECTION NO.65

23. Under subsection 499(1) the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is Direction No. 65 which commenced on 23 December 2014.

24. Subparagraph 6.1(3) of the Direction provides, in part:

    Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

25. Paragraph 6.2 provides general guidance and directs that “factors that must be considered in making a revocation decision are identified in Part C of this Direction.”

26. Under the heading General Guidance subparagraph (1) 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.

27. Paragraph 7 of the Direction sets out how the discretion is to be exercised.  “Informed by” the principles in paragraph 6.3, I must “take into account” the considerations in Part C, in order to determine whether the mandatory cancellation of Mr Van Rooyen’s visa will be revoked.

28. In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion to revoke the cancellation of a visa is to be approached.  The principles include the following: 

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

    (2)  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 to forfeit the privilege of staying 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.

29. Paragraph 7 sets out how the discretion is to be exercised.  It relevantly provides:

    (1)Informed by the principles in paragraph 6.3 above, a decision-maker:

    ……

    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.

30. The Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case.[4]  Primary considerations should generally be given greater weight than the other considerations.[5]

    [4] Direction 65, paragraphs 6.2(3) and 8(1).

    [5] Direction 65, paragraph 8(4).

31. Paragraph 13(2) provides:

    In deciding whether to revoke a mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

    a)Protection of the Australian community from criminal or other serious conduct;

    b)The best interests of minor children in Australia;

    c)Expectations of the Australian community.

32. Paragraph 14(1) sets out other considerations to be taken into account where relevant.  It provides:

    In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

    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.

    ISSUES FOR DETERMINATION

33. I have set out subsection 501CA(4) of the Act earlier in these reasons. Before the discretion to revoke the original decision is enlivened, it is necessary for the decision-maker to be satisfied that the conditions for the exercise of the discretion have been met.

34. This is consistent with clause 6.1(4) of the Direction which states in part:

    Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case. [Emphasis added].

35. It is not in dispute that Mr Van Rooyen has made the representation referred to in paragraph (a) of subsection 501CA(4). It is also not in dispute that he does not pass the character test in subparagraph (b)(i) of the subsection. This means that in this matter, before consideration is given to the exercise of the discretion it must be determined whether “there is another reason [i.e. other than an applicant passing the character test] why the original decision should be revoked.”[6]

    [6] Subparagraph 501CA(4)(b)(ii).

36. If such a reason is found to exist, it will then be necessary to decide whether the discretion to revoke the decision cancelling Mr Van Rooyen’s visa should be exercised.

    REASONING

    ISSUE 1: IS THERE ANOTHER REASON WHY THE DECISION TO CANCEL MR VAN ROOYEN’S VISA SHOULD BE REVOKED?

    Evidence of Mr Van Rooyen

37. I accept his evidence that he has a close and stable relationship with Ms Namer and that this relationship is continuing. I also accept his evidence that he has a good relationship with Mrs Namer and that on occasions he has assisted Ms Namer with her care and will continue to do so if he is able.

    Evidence of Ms Namer

38. Ms Namer provided a statement dated 9 February 2015[7] and gave evidence. She said that after they commenced to live with Mrs Namer, Mr Van Rooyen helped with household tasks and maintenance and contributed financially to the household. When Mr Van Rooyen started his electrical business Ms Namer assisted him with the clerical work.

    [7] Exhibit A2.

39. Mr Van Rooyen assisted Ms Namer to care for her mother when she became seriously ill.  Both Ms Namer and Mrs Namer regularly visited Mr Van Rooyen while he was in prison and in detention.

    Evidence of Mrs Namer

40. Mrs Namer provided a statutory declaration made 9 February 2015.

41. Mrs Namer stated, in part:

    in 2012 I had some health issues, and if it was not for Carl I would not have received the medical treatment I needed.

    Since then I have been on medication which made me better but I need help with everyday tasks that I rely on Karin & Carl for that.

    ……

    When Carl was released on supreme court bail in June 2014 and came home for 6 weeks it was such a happy time for all of us.

    He was back to his normal self and was going to NA meetings, he was behaving well  and  helping us around the house.

    …… 

    Karin is very emotional and stressed, she is suffering from high levels of anxiety and the thought of losing him terrifies her and I’m really worried about her and how we will cope.

    I know that if Carl was to be refused to stay in Australia it would affect Karin in a catastrophic way, their bond is so strong, she would be devastated and it will be a huge impact on us, as I rely on Karin for assistance in day to day living as I’m currently on medication and without her being there for me I would not manage.

    Evidence of Mr Sheehan, Forensic Psychologist

42. Mr Sheehan assessed Ms Namer on 16 January 2016[8]. He provided a report dated 17 January 2016 and gave evidence.

    [8] Exhibit A3.

43. Mr Sheehan reported:

    She described underlying pervasive fears of abandonment underpinned by a series of losses associated with the males in her life since childhood (abandonment by her father and uncle, death of her brother and two former partners). It is likely that this background has made the potential loss of her current partner (Carl) to be a particularly critical pressure point.

    Ms Namer described a low and erratic mood at the present time. She experiences feelings of being trapped and overwhelmed by the demands of caring for her mother. She is preoccupied with thoughts of losing her partner…….

    Her mood appears fragile and vulnerable, giving the impression that she is “just hanging on”.

    ……

    The relationship [with Mr Van Rooyen] has remained unbroken since March 2011 and she considers that the pair have formed a permanent bond. Ms Namer stated that she is reliant on Mr Van Rooyen for emotional support and for practical support in assisting with her mother…  Ms Namer has few other social supports at this time, having been forced to forsake her old network associates due to their association with substance abuse and her  appreciation that these associates would escalate her chances of relapse.

    ……

    Ms Namer has a history of serious poly-substance use disorder and has only overcome her dependence since 2014. She remained a psychologically vulnerable person who is faced with the arduous and relentless task of caring for her mother who has developed a dependence on Ms Namer. …… In turn, Ms Namer has become dependent on Mr Van Rooyen’s support both emotionally and in practical matters.

    ……

    Due to her obligation to support her mother she would be unable to follow Mr Van Rooyen to South Africa in the event that he is deported. Ms Namer’s vulnerability would seem further complicated by the nature of the current dilemma, given her repeated loss of key male figures throughout her life (through either death or rejection). … In my view, the cancellation of Mr Van Rooyen’s visa would predispose Ms Namer to a heightened risk of psychological collapse as well as contributing to the more chronic hardship facing the prospect of ongoing care of her mother with little social support.

    Consideration

44. On the basis of the evidence I have referred to I am satisfied that since about August 2012 Mr Van Rooyen has been a member of a family unit with Ms Namer and Mrs Namer, despite having spent a considerable amount of this time in custody or immigration detention.

45. However, in this application, the existence of such a family relationship alone would not have been sufficient reason to enliven the discretion in the circumstances of this matter. On this issue the evidence of Mr Sheehan has been critical.

46. On the basis of his evidence I am satisfied that Ms Namer has developed a reliance on Mr Van Rooyen for her own well-being and to assist in the care of Mrs Namer. In the special circumstances of which Mr Sheehan has given evidence I am satisfied that the well-being of their family unit and Ms Namer and Mrs Namer in particular, is a reason why the cancellation should be revoked. 

47. However, it is to be noted that this is a finding that there is “a” reason to revoke the cancellation and therefore the discretion to revoke is enlivened. Whether the discretion should be exercised is to be determined in accordance with the principles set out in Direction No.65, to which I now turn.

    ISSUE 2: SHOULD THE DISCRETION TO REVOKE THE DECISION TO CANCEL MR VAN ROOYEN’S VISA BE EXERCISED?

    2.1.     PRIMARY CONSIDERATIONS

    2.1.1. PRIMARY CONSIDERATION 1:  PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

1. I note that I must have regard to matters set out in paragraph 13.1 being:

   ·the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens;

   ·the nature and seriousness of the person’s conduct to date;

   ·the risk to the Australian community should the person commit further offences or engage in other serious conduct[9].

   2.1.1.1 The nature and seriousness of Mr Van Rooyen’s conduct to date

   [9] ‘Serious conduct’ is defined in Annex B to the Direction to include conduct of concern which may not constitute a criminal offence.

2. The conduct of Mr Van Rooyen over the ten month period of his offending was serious.  It involved the defrauding of both banks and their customers and the unlawful obtaining of the property of others. At the same time Mr Van Rooyen committed several drug offences.  His conduct was made more serious by his continued offending while on bail.

3. In the Local Court, Magistrate Goodwin considered alternate forms of sentencing but concluded that it was inappropriate that Mr Van Rooyen be dealt with by anything other than a full-time custodial sentence.[10] When he appealed to the District Court, Judge Hanley observed that “the Magistrate has been extremely lenient in relation to the offences committed by Mr Rooyen [sic]”.[11]  His Honour granted leave for the appeal to be withdrawn.

   [10] Exhibit R1 p.30.

   [11] Exhibit R1 p.32

4. Although Mr Van Rooyen committed a large number of offences to fund his addiction, they were committed during a period of 10 months. It does not appear that the offending escalated. Further, apart from the offences committed during the discrete period of time, there was no pattern of offending.

   2.1.1.2 The risk to the Australian community should Mr Van Rooyen commit further offences or engage in other serious conduct

5. The Direction states that I “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.” [12]

   [12] Paragraph 13.1.2(1).

6. There are also considerations to which regard must be had 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 rehabilitative courses to be undertaken).[13]

   [13] Paragraph 13.1.2(2).

   2.1.1.3 Consideration

7. Should Mr Van Rooyen engage in conduct similar to his past criminal activity, members of the community and the banking industry will suffer financial loss and inconvenience. This  may contribute to feelings of insecurity in regard to the banking system itself. Mr Van Rooyen illegally obtained funds totalling about $27,000. Whilst this is a significant sum it is substantially less than the amount involved in many instances of fraud which come before the courts. In addition, should Mr Van Rooyen be able to remain in Australia and earn an income, there is some prospect of the funds being recovered.

8. As Mr Van Rooyen’s offending did not involve physical harm, nor the risk of physical harm, to any member of the community I am satisfied that the community’s tolerance of the risk of future harm would be greater than if the risk was of physical harm or the loss of very large sums of money.

9. Mr Van Rooyen says that ever since he was taken into custody on the second occasion he has been free of illicit drugs. He is confident that he will not relapse into drug abuse and gambling and therefore will not engage in further criminal conduct. Although he could have obtained drugs in prison and in immigration detention, he did not do so. There was very little opportunity for Mr Van Rooyen to obtain professional help with his drug addiction while he was held in custody. He did see a counsellor on two or three occasions in prison and he attended Narcotics Anonymous when he was on bail.

10. I am satisfied that Mr Van Rooyen is genuinely remorseful of his criminal conduct.

11. I would have held grave concerns about whether Mr Van Rooyen would be able to remain drug free if he was released into the community had it not been for the evidence of Mr Jones, Forensic Psychologist.

12. Mr Jones assessed Mr Van Rooyen on 13 January 2016 for the purposes of this application.  Mr Jones provided a report dated 20 January 2016.[14]

    [14] Exhibit A4.

13. In his report Mr Jones stated, in part:

    In terms of formal diagnoses, Mr. Van Rooyen is suffering from the following (co-morbid) disorders:-

    oAmphetamine-type Substance Use, moderate severity, in sustained  remission.[15]

    [15] Mr Jones made the following footnote to this diagnosis:

    This specifier is used where full criteria for a stimulant use disorder were previously met, none of the criteria have been met at any time during a period of 12 months or longer. There is no definitive time when such a diagnosis is no longer made.

    ……

    He is not currently experiencing any symptoms of a clinical psychological disorder.

    ……

    Mr Van Rooyen’s period of offending appears to be an aberration in what appears to be conformist and law abiding lifestyle.

    ……

    I consider his offending to be short term situational and not an indication of a more serious or underlying, indicator of continuing offending or of an antisocial personality style.

    ……

    I am of the opinion Mr. Van Rooyen has fully rehabilitated from his previous drug addiction.

    Risk Assessment

    Based on assessment, it is my opinion that Mr. Van Rooyen currently poses a low risk[16] for committing further offences relative to other offenders. …… There were no clinical or forensic risk management factors identified during this assessment that warrant Mr. Van Rooyen participating in any treatment plan.

    [16] Mr Jones made the following footnote to this diagnosis:

    Risk assessment tools are unable to state an individual has a ‘zero’ or ‘no’ risk of offending. A ‘low’ risk of offending is the lowest possible assessment level. The risk of reoffending is defined as re-incarceration within one (1) year, not the risk of ‘breaking the law’ within one (1) year.

14. On the basis of Mr Jones’ evidence I am satisfied that Mr Van Rooyen has overcome his drug addiction and genuinely intends not to revert to using illegal drugs or being involved in criminal activity. Of course, no-one can guarantee that he will maintain his resolve, but taking into account all of the evidence I am satisfied that the risk to the Australian community should Mr Van Rooyen be released from detention and remain in Australia, is low. I have reached this conclusion having given due consideration to the Government’s commitment to protecting the Australian community from harm.

    2.1.2  PRIMARY CONSIDERATION 2:  BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

15. There are no minor children in Australia affected by the decision.

    2.1.3  PRIMARY CONSIDERATION 3:  EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

16. Clause 13.3 of the Direction provides:

    (1)  The Australian community expects non-citizens to obey Australian 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.

17. It is very difficult to assess the expectations of the community in an application such as this. I have no doubt that there will be strongly differing views as to whether Mr Van Rooyen should be permitted to remain in Australia. However, having regard to the fact that he committed the offences whilst suffering a drug addiction which is now under control, that the amount obtained illegally was not at the upper end of the scale of dishonesty offences and that the risk of his re-offending has been assessed as low, I am of the view that, in general, the Australian community would expect that Mr Van Rooyen would be permitted to remain in Australia.

18. In reaching this conclusion I have considered that the Australian community would take into account that Mr Van Rooyen has experienced time in prison and in immigration detention as a result of his past conduct and is likely to have learned from this experience.  I have considered also that the community would give him credit for his support of Ms Namer and Mrs Namer and for the fact that he has skills which he can contribute to the community should he be free to do so.

    2.2  OTHER CONSIDERATIONS SET OUT IN THE DETERMINATION

19. Clause 14 provides:

    (1)  In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

    (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.

    2.2.1 INTERNATIONAL NON-REFOULEMENT OBLIGATIONS

20. Australia does not have any non-refoulement obligations relevant to this application.

    2.2.2 STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

21. Clause 14.2 provides:

    (1)  The strength, nature and duration of ties to Australia. 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 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).

22. For the reasons set out earlier I am satisfied that Mr Van Rooyen has established strong family ties in Australia with Ms Namer and Mrs Namer, both of whom are Australian citizens and are permanently residing here.

23. On the basis of the evidence of Mr Sheehan to which I have referred, I am satisfied that if the reviewable decision is not revoked Ms Namer will suffer hardship, as will Mrs Namer, albeit to a lesser extent.

24. However, I must take into account that Mr Van Rooyen started offending only three years after he arrived in Australia. Further, he has made very limited positive contribution to the Australian community as he has spent a considerable amount of time in custody or in immigration detention. That time has been at significant expense to the Government, which detracts from any positive contribution he may have made. These matters lessen the weight to be given to this consideration.

    2.2.3  IMPACT ON AUSTRALIAN BUSINESS INTERESTS

25. I am satisfied that a decision not to revoke the cancellation of Mr Van Rooyen's visa will not have a relevant impact on Australian business interests.

    2.2.4  IMPACT ON VICTIMS

26. I do not have sufficient evidence to assess the impact which a decision not to revoke the cancellation would have of members of the Australian community, including victims of Mr Van Rooyen's behaviour and their families.

    2.2.5  EXTENT OF IMPEDIMENTS MR VAN ROOYEN MAY FACE IF HE IS REMOVED FROM AUSTRALIA

27. Mr Van Rooyen has immediate family in South Africa. He has a tertiary education and is in good health. It was not argued that he would have any difficulty in re-establishing himself in his home country.

28. This consideration does not weigh in favour of the cancellation decision being revoked.

    THE BALANCING EXERCISE

29. In this application two considerations each have substantial weight – the need to protect the Australian community from criminal activity such as that engaged in by Mr Van Rooyen in the past and the impact which Mr Van Rooyen’s removal from Australia would have on the family of which he has become a member.

30. Although Mr Van Rooyen committed numerous dishonesty offences whilst addicted to illegal drugs, he has not used these drugs since July 2013. Despite his having very little professional help I am satisfied that his addiction is in sustained remission. It may never be cured. However, I accept the opinion of Mr Jones that his offending appears to be “an aberration” and that the risk of his re-offending is low.

31. Notwithstanding Mr Van Rooyen's history of drug-taking and deception, I am satisfied that the risk of future harm being caused by Mr Van Rooyen is an acceptable one. Taking into account all of the considerations required by Direction 65 I am satisfied that, as the risk to the community is acceptable, the consideration of his ties to the Australian community outweigh the other considerations, including the primary considerations.

    CONCLUSION

32. The reviewable decision, being the decision of the delegate of the Minister for Immigration and Border Protection made 3 December 2015 not to revoke the cancellation of Mr Van Rooyen’s bridging visa associated with his partner visa application, was set aside.

33. In substitution it was decided that, in accordance with the provisions of subsection 501CA of the Migration Act 1958 (Cth), the decision of the delegate of the Minister for Immigration and Border Protection made 19 December 2014 to cancel Mr Van Rooyen’s visa associated with his application for a partner visa be revoked.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance.

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

Associate

Dated 21 March 2016

Dates of hearing	18-19 February 2016
Date final submissions received	19 February 2016
Advocate for the Applicant	R Turner
Solicitors for the Applicant	Turner Coulson Immigration Lawyers
Advocate for the Respondent	L Buchanan
Solicitors for the Respondent	Australian Government Solicitor