Visa Cancellation Applicant and Minister for Immigration and Citizenship
[2012] AATA 42
•27 January 2012
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2012] AATA 42
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/ 4864
GENERAL ADMINISTRATIVE DIVISION ) Re VISA CANCELLATION APPLICANT Applicant
And
MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal Dr P McDermott, Senior Member Date27 January 2012
PlaceBrisbane
Decision The Tribunal affirms the decision under review
..........[Sgd]....................................
Senior Member
CATCHWORDS
IMMIGRATION AND CITIZENSHIP – Cancellation of TY Subclass 444 visa on character grounds – Applicant New Zealand citizen – Protection of Australian community – Seriousness of criminal conduct – Risk of re-offending – Length of time applicant ordinarily resident in Australia before engaging in criminal activity – Family ties – Applicant failed character test – Circumstances weigh in favour of exercise of discretion to cancel visa – Decision under review affirmed
Migration Act 1958 (Cth) ss 499(1), 499(2A), 501(2), 501(6), 501(7)
Federal Commissioner of Taxation v Salenger (1988) 81 ALR 25
Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318
Milne v Minister for Immigration and Citizenship [2010] FCA 495
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN No 81
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Rosson v Minister for Immigration and Citizenship [2011] FCA 194 Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690
REASONS FOR DECISION
27 January 2012 Dr P McDermott, Senior Member INTRODUCTION
1. The applicant[1], a citizen of New Zealand, has resided in Australia since 1999. On 2 November 2011, a delegate of the respondent found that he did not pass the character test due to his criminal record in Australia, and decided to exercise the discretion to cancel his Class TY Subclass 444 Special Category (Temporary) visa (the visa). He now seeks review of that decision by this Tribunal.
LEGISLATION
[1] In these reasons, which are a matter of public record, the name of the applicant is not disclosed in order to protect the privacy of the children. Furthermore, the applicant’s name is not disclosed as the decision is made in a protective jurisdiction and the Tribunal would not wish to interfere with any rehabilitative endeavours he has for the future.
Character test
2. Under s 501(2) of the Migration Act 1958 (Cth) (the Act) the Minister may cancel a visa granted to a person if “the Minister reasonably suspects that the person does not pass the character test”[2] and “the person does not satisfy the Minister that the person passes the character test”.[3]
[2] Migration Act 1958 (Cth), s 501(2)(a).
[3] Migration Act 1958 (Cth), s 501(2)(b).
3. The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds in subs 501(6)(a)-(d) is met. Section 501(6)(a) of the Act refers to one ground as being where:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
…
4. Section 501(7)(c) provides that a person has a “substantial criminal record” if “the person has been sentenced to a term of imprisonment of 12 months or more”.
Direction
5. Under s 499(1) of the Act the Minister “may give written directions to a person or body performing functions or exercising powers under [the] Act”, with which, in accordance with s 499(2A), the “person or body must comply”.[4]
[4] Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583.
6. On 3 June 2009 the Minister, exercising powers under s 499(1) of the Act, issued Direction [no.41] – Visa refusal and cancellation under s501 (“Direction 41”). Direction 41 commenced operation on 15 June 2009. This Direction applies to decision-makers exercising powers under s 501 of the Act to cancel a visa of a person who does not satisfy the Minister that the person passes the character test.[5]
[5] Direction [no.41] – Visa refusal and cancellation under s501, para 4(1).
7. Paragraph 9 of Direction 41 requires decision-makers to take into account what are referred to as the “primary considerations” in every case. The four primary considerations are set out in paragraph 10(1) of Direction 41:
(a)the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
(b)whether the person was a minor when they began living in Australia;
(c)the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
(d) relevant international obligations, including but not limited to:
(i)the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
(ii)the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
8. Paragraph 11 of Direction 41 also sets out “other considerations” which must be taken into account. These include family ties, the person’s age and health, any links to the country to which the person would be removed, hardship to the person or the immediate family lawfully resident in Australia, level of education and whether the person has been formally advised previously of the deportation or character provisions of the Act. Under Paragraph 11(2) of Direction 41 it is provided that these “other considerations”, where relevant, “must be taken into account but, generally, should be given less weight than that given to primary considerations”.
ISSUES
9. The issues that I have to consider are:
i.Does the applicant pass the character test; and
ii.If not, should the discretion to cancel the visa be exercised?
CHARACTER TEST
10. The criminal history of the applicant was admitted into evidence. Between 2004 and 2007 the applicant committed a number of offences.
11. For the purpose of considering the application of s 501 of the Act, it is important to consider the criminal history of the applicant. On 14 December 2009, the applicant was convicted and sentenced before the District Court of Queensland of the following offences:
(i)Two concurrent terms of imprisonment of 6 years for two counts of maintaining an unlawful relationship with a child;
(ii)Three concurrent terms of imprisonment of 3 years for three counts of rape;
(iii)Six concurrent terms of imprisonment of 2 years and 6 months for 6 counts of indecent treatment of children under 16 (child under 12 years);
(iv)Four concurrent terms of imprisonment of 2 years and 6 months for 4 counts of indecent treatment of children under 16 – lineal descendant/guardian/carer; and
(v)Two years and 6 months imprisonment for one count of an attempt to commit rape.
12. I am satisfied that the applicant does not pass the character test because he has a “substantial criminal record” by being sentenced to a term of imprisonment of 12 months or more.[6] There was no issue before me that the applicant does not pass the character test.
[6] Migration Act 1958 (Cth), s 501(7)(c).
DISCRETION
13. Having found that the applicant does not pass the character test, I am now required, under Paragraph 8 of Direction 41, to consider whether to exercise the discretion to cancel the visa of the applicant. This requires me to consider the primary considerations as well as the other considerations which have been already mentioned.
THE FIRST PRIMARY CONSIDERATION: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM SERIOUS CRIMINAL OR OTHER HARMFUL CONDUCT
14. Paragraph 10.1(2) of Direction 41 provides that factors relevant to assessing the level of risk of harm to the community include:
(a)the seriousness and the nature of the relevant conduct; and
(b)the risk that the conduct may be repeated.
Seriousness and nature of the conduct
15. Paragraph 10.1.1(1) of Direction 41 specifies that “[c]rimes involving violence or the threat of violence are of special concern to the welfare and safety of the Australian community”, and that “crimes involving violence, particularly against vulnerable persons (such as minors, the elderly and the disabled), are especially abhorrent to the whole community”. In this case the crimes that the applicant committed were against vulnerable minors. I regard the crimes as “violent”, being committed against minors who lack any capacity to consent to the sexual acts.
16. Paragraph 10.1.1(2) of Direction 41 gives examples of offences that are considered serious. That paragraph states that “all offences perpetuated against a child (particularly sexually-based offences)”[7] and the offence of “rape and any other sexually-based offences”[8] are considered to be serious. The applicant has therefore committed offences which are categorised in the Direction as being “serious”.
[7] Direction [no.41] – Visa refusal and cancellation under s 501, para 10.1.1(2)(b).
[8] Direction [no.41] – Visa refusal and cancellation under s 501, para 10.1.1(2)(c).
17. Paragraphs 10.1.1(3)-(5) of Direction 41 require decision-makers, in exercising the discretion, to take into account a number of other factors. These include the sentence imposed for the offences, including the number and nature of the offences, the period between offences and the time that has elapsed since the most recent offence, relevant information about the person, such as judicial comments or professional psychological reports, and any relevant factors the person provides as mitigating factors.
18. The offences were committed against young children. One child was aged between eight years and eleven years over the period of offending and the other child was aged between ten years and thirteen years over that period. The offences were committed when the children were in the care of the applicant as the mother of the children, who was then a single mother, had to earn a living. The wife of the applicant confirmed that the children had looked upon the applicant as a “father figure”. The crimes are a serious breach of trust by the applicant.
19. In 2009 the applicant appeared before the District Court of Queensland where he was, by his guilty plea, convicted of 16 counts in the indictment.
20. I am satisfied that the various counts in the indictment are crimes which, in terms of Direction 41, “are especially abhorrent to the whole community”. It is not desirable in these reasons, which are a matter of public record, to dignify the criminal conduct of the applicant by outlining what he did. His actions are recorded in the sentencing remarks of the learned trial judge which is in evidence before me. To protect the privacy of the victims of these crimes I have made an order that the file and transcript in this application be kept confidential.
21. I conclude that the offending conduct of the applicant is certainly “serious” within the meaning of Direction 41.
Risk that the conduct may be repeated
22. I am required by Paragraph 10.1.2 of Direction 41, when assessing the risk of harm to the community, to consider the risk that the conduct may be repeated. Paragraph 10.1.2(1) of Direction 41 provides that “[t]he person’s previous general conduct and total criminal history are to be considered highly relevant to assessing any risk of re-offending”.
23. Paragraph 10.1.2(2)(a) of Direction 41 requires me to consider the “recent history of convictions, which should be considered as indicating an increased risk of re-offending”. The fact that the applicant has pleaded guilty to 16 indictable offences is certainly, in my view, indicative of an increased risk of re-offending.
24. Paragraph 10.1.2(2)(b) of Direction 41 requires me to consider “evidence of the extent of rehabilitation already achieved and the prospect of further rehabilitation”. The applicant has completed a number of courses whilst in prison including the sexual offending program. In giving evidence he discussed some aspects of his course. I am prepared to determine this application on the basis that the applicant was of good conduct whilst he was in prison.
25. At a telephone directions hearing that was held more than a month before the hearing of this application, I advised the applicant that it was important that he place evidence of his rehabilitation before this Tribunal. I also advised the applicant that it was important that he appreciate that there was a “two days rule” (pursuant to subs 500(6H) and (6J) of the Act) requiring that the Minister be given two business days’ notice of any information or documents that the applicant would rely upon at the hearing. On 16 December 2011, the applicant filed a number of documents in the registry of this Tribunal including references, a document outlining his future plans and the Medium Intensity Sexual Offending Program Completion Report. These documents were provided to the respondent.
26. In considering the risk of recidivism the applicant was asked a number of questions upon the material that he filed in the Tribunal. This was done as a matter of fairness to the applicant so that he had the opportunity to address some issues that were of concern. The applicant did not place before this Tribunal any concrete plans to assist in his rehabilitation apart from providing the details of persons who would be members of his support network. It is certainly not apparent from the references which were filed by the applicant that the persons who provided these references have been made aware of the criminal conduct of the applicant. Furthermore, the applicant was closely questioned by the respondent upon this matter; the answers given by the applicant also do not satisfy me that the persons who provided the references are aware of the conduct of the applicant.
27. In view of the fact that the applicant committed offences on two children, I advised the applicant of my concern that the references referred to his imprisonment for “mistreatment of a minor” when the conduct of the applicant involved crimes on two minors. I am not satisfied that the persons who are members of his support network are fully aware of his criminal conduct. The applicant certainly did not indicate that he made full disclosure of his criminal conduct to the members of his support network. In these circumstances I am not satisfied that applicant has a proper support network to which he could turn in cases of difficulty. I am also not satisfied that he would turn to the support network, particularly as he has confessed that his conduct was opportunistic.
28. The main contention of the applicant is that he is a person who is at a low risk of re-offending. In his application he contends: “The reports have determined that I am a ‘low risk’ of re-offending”. In evidence before me are two reports which indicate that the applicant has been assessed as having a low score on the STATIC-99 actuarial tool, which measures static risk factors to assist in predicting recidivism for sexual offenders. In the Medium Intensity Sexual Offending Program there is a score of zero; that report does not contain any reasons to explain how that score was calculated. The other report, by a clinical psychologist, was commissioned by the applicant’s lawyer for submission at his sentencing. In that report, dated 25 October 2009, the applicant is assessed as having “a low risk of sexual reoffending” as he “possesses only one of the ten factors measured namely ‘unrelated victims’” (para 13.14). During the hearing I raised whether this factor had been correctly assessed as the victims of the applicant were related to him by marriage. I also questioned whether the STATIC-99 actuarial tool has any relevance to circumstances such as these where the victim is not of such an age to make an immediate complaint. In any event the clinical psychologist, in his report, stated that the actuarial estimates “do not directly correspond to the recidivism rate of the individual” (para 14.2). In these circumstances I am not satisfied that the STATIC-99 actuarial tool has any bearing on the risk of recidivism of an individual who commits offences on young children.
29. I consider that in giving evidence the applicant minimised the seriousness of his offences. The tenor of his evidence was that he had not committed rape upon the children because he asserted that there was no vaginal intercourse. He mentioned that it was only because of a change in the law that his conduct could be regarded as rape. In deciding this application I rely upon the ruling of the learned trial judge, in his sentencing remarks, that the applicant committed rape upon the children. Direction 41 would have been drafted having an appreciation of the modern meaning of the term “rape”. In any event, the fact that the applicant found it necessary to raise this technical issue does not convince me that he has remorse for his actions or that he really appreciates the seriousness of his conduct.
30. The wife of the applicant was closely questioned by the respondent upon whether there would be a risk of the applicant reoffending. The wife of the applicant has loyally offered support and accommodation to the applicant. When she was cross-examined, she was honest in voicing her fears of a recurrence of the offence. I accept the submission of the respondent that she is in a position to know about the applicant. She also made it clear that any intimate relationship was at an end (as he has done).
31. What concerns me most about the conduct of the applicant is his intention to use prostitutes and pornography; this was revealed in his future plans document and the Medium Intensity Sexual Offending Program Completion Report. I closely questioned the applicant about his intention to use prostitutes and pornography. This was done as a matter of fairness to the applicant so that he had notice of matters that were of concern to me. The applicant remarked that he gave those answers in response to questions that were asked of him while undertaking a course. However, the applicant had previously been advised, in a course module, that the use of pornography was identified as being a high risk factor in his situation. The applicant also confirmed to me that a fetish developed because of his use of pornography. I also advised the applicant that I was concerned about his references to the use of pornography in the context of “gratifying my needs”. The remarks of the applicant do not convince me that he has a low risk of recidivism.
32. In considering the risk of recidivism I have had regard to the decision of Re Stone and Minister for Immigration and Ethnic Affairs[9] in which Davies J (as President of this Tribunal) held that even if the risk of recidivism is not high, that risk will strongly support deportation (or visa cancellation) when recidivism, if it does occur, may cause great harm.
[9] (1981) 3 ALN No 81.
33. I have also considered the case of Minister for Immigration, Local Government and Ethnic Affairs v Batey[10] in which the Full Court of the Federal Court of Australia held that a real risk of recidivism is one that is not “far-fetched or fanciful”. In this case I consider that there is a real risk of recidivism which is not far-fetched or fanciful having had regard to the fact that in his future plans document the applicant has stated: “I need to avoid buildings, parks and/or areas where children may attend, and/or congregate”.
[10] (1993) 112 ALR 198 at 208.
34. In considering the likelihood of recidivism the applicant contends that the main contributing factor to his difficulties has been “a lack of intimacy in relationships”. I am not satisfied that this assertion of the applicant has any validity at all.
35. Having regard to all of the evidence I find that there is a real risk that the applicant will re-offend. Given this finding and the finding that the offences and conduct are serious, I have come to the conclusion that the first primary consideration weighs strongly in favour of cancellation of the visa.
SECOND PRIMARY CONSIDERATION: WHETHER THE APPLICANT WAS A MINOR WHEN HE BEGAN LIVING IN AUSTRALIA
36. Paragraph 10.2 of Direction 41 provides that favourable consideration should be given “if the person was a minor” when he or she first “began living in Australia and spent their formative years in Australia”.[11] However, less weight should be given “if the person began living in Australia as a minor but was close to attaining adulthood at that time”.[12]
[11] Direction [no.41] – Visa refusal and cancellation under s 501, para 10.2(1).
[12] Direction [no.41] – Visa refusal and cancellation under s 501, para 10.2(2).
37. When the applicant began living in Australia on a permanent basis in 1999, he was an adult. Direction 41 does not provide what weight should be given to the fact that the visa holder was not a minor when he began living in Australia. During the hearing I tentatively remarked that this primary consideration may be accorded a neutral value. However, Rares J, in Rosson v Minister for Immigration and Citizenship,[13] has ruled that a decision-maker is “entitled to take into account the fact that a person who arrived in Australia as an adult did so with the knowledge, duties and responsibilities of an adult in the position of the visa-holder” and can assess what “weight ought to be given to that factor in the deliberate process”. I follow this considered statement of Rares J in view of the fact that in Federal Commissioner of Taxation v Salenger,[14] French J (as he then was) remarked: “Ordinarily, senior members of the tribunal should apply the law as stated by the judges of this court”. As the applicant was an adult, as well as being in a leadership position in his church, when he began living in Australia on a permanent basis, this second primary consideration weighs strongly, in my view, in favour of the cancellation of the visa.
THIRD PRIMARY CONSIDERATION: THE LENGTH OF TIME THAT THE APPLICANT WAS ORDINARILY RESIDENT IN AUSTRALIA PRIOR TO ENGAGING IN CRIMINAL ACTIVITY
[13] [2011] FCA 194 at [21].
[14] (1988) 81 ALR 25 at 34.
38. Paragraph 10.3 of Direction 41 provides that consideration should be given to the length of time that a person has been ordinarily resident in Australia, with “more favourable consideration” to be given the “longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on the person’s character”. A note to this paragraph provides some guidance in stating that “a period of more than 10 years of residence in Australia prior to a person engaging in criminal activity … which bears negatively on the person’s character would be an important consideration”.
39. The applicant commenced his criminal conduct after some 5 years of residence in Australia. This is not a long period of time in this context. I consider that this third primary consideration weighs strongly in favour of cancellation of the visa.
FOURTH PRIMARY CONSIDERATION: RELEVANT INTERNATIONAL OBLIGATIONS
40. The fourth primary obligation requires me to consider the relevant international obligations which have been earlier mentioned. The applicant has a son and the victims of the crimes are still children. In terms of clause 10.4(1) of Direction 41, each child is “a child in Australia who is potentially affected by a visa … cancellation”, so I am required to give consideration to the best interests of each child.
41. This is a case where the interests of each child are not identical. Such a situation is anticipated by clause 10.4.1(3) which provides: “If there are two or more relevant children, it is not to be assumed that the interests of each child will coincide”.
42. The applicant wanted to call his son to give evidence in support of his application. I ruled that his son could not give evidence having regard to the fact that the applicant had not complied with the rule (pursuant to subs 500(6H) and (6J) of the Act) that the Minister be given two business days’ notice of the information that would be provided by the son. I advised the applicant of a recent decision of the Federal Court of Australia that reaffirms the application of long-standing authority[15] that s 500(6H) and (6J) of the Act are binding on the Tribunal.[16]
[15] Goldie v Minister for Immigration and Multicultural Affairs [2001] FCA 1318.
[16] See Milne v Minister for Immigration and Citizenship [2010] FCA 495 at [40] per Gray J.
43. I appreciate that the applicant wishes to provide support to his son. During the hearing I raised with the applicant his intention to use the services of prostitutes as well as pornography even though he intends to move back into accommodation provided by his wife. In these circumstances I consider that the applicant is more concerned about “gratifying … [his] … needs” then what would be the effect of such conduct upon his son. The applicant was questioned by the respondent about the effect of this conduct upon his son; it is fair to say that the respondent put to the applicant that he essentially informed the Tribunal that he would tell his son to do as he said and not as he does. The applicant did not challenge this assertion. I am not satisfied that the applicant would be a beneficial role model for his son.
44. The applicant, in his notice dated 19 February 2011 to the Department of Immigration and Citizenship, gave an answer of “no” to the question “Do you have any concerns or fears about what would happen to you on return to your country of citizenship”. He then did not then indicate any concerns about what would happen to him if he was returned to New Zealand.
45. Another matter of concern to me is that I am not convinced that the applicant will live with his wife if he is released into the Australian community. In his notice dated 19 February 2011 to the Department of Immigration and Citizenship, the applicant stated that he did not intend to reside with his wife, but with another woman who is named in the notice as being a spouse/de facto partner. The applicant now asserts that this de facto relationship has broken down. The applicant claims that this relationship broke down after a telephone call. He claims not to know about the current circumstances of this woman and asserts that he has not been in contact with her. I am not satisfied that the applicant would live with his wife and provide support to his son if he was released from prison. As a matter of fairness to the applicant I advised him of my concerns in this regard. The response that I received from the applicant did not convince me that he would remain with his wife and son.
46. In considering the best interests of the children who are the victims of the criminal conduct of the applicant I have had regard to the fact that the applicant intends to live in a location which is some five or ten minutes away from where the victims live. The applicant quite frankly admitted that he could run into the children in the future although he stated that he would attend a different church to the church that the children attend. His future plans document did not reveal any strategies whereby he would avoid contact with the children in the future. The victim impact statements of the children were admitted in evidence before me as well as a statement from the mother of the children. Suffice to say the effects of the criminal conduct have been devastating upon the lives of the children; they have needed counselling assistance. The mother of the children has also had to have counselling assistance. The children are reluctant to leave their house; they have had nightmares; and they are also wary around males. I am not satisfied that the applicant fully appreciates the need to avoid contact with the victims in the future.
47. After considering all of the evidence I have concluded that the fourth primary consideration weighs strongly in favour of cancellation of the visa.
OTHER CONSIDERATIONS
48. I have considered the other considerations that are outlined in paragraph 11 of Direction 41. In view of the fact that his son resides in Australia I acknowledge that the applicant would suffer some hardship if he was removed. These other considerations, which I will examine, weigh slightly against the cancellation of the visa of the applicant.
Family ties, the nature and extent of any relationships
49. I am required to consider family ties and the nature and extent of any relationships.
50. If the applicant was removed from Australia he would be separated from his son. Direction 41 requires me to consider whether that the applicant is in “a genuine marital relationship (including a de jure or de facto) relationship with … [a] permanent resident”.[17] While the applicant is still legally married to his wife, in his parole application of 20 October 2011 he states that his marriage is “at an inevitable end” and makes reference to her as his “ex-wife”. In his notice dated 19 February 2011 to the Department of Immigration and Citizenship, the applicant stated that he intended to reside with another woman who is named in the notice as being a spouse/de facto partner; he now denies being in a de facto relationship with that woman.
[17] Direction [no.41] – Visa refusal and cancellation under s 501, para 11(3)(a)(ii).
51. I am satisfied that while the applicant is legally married, he does not now have a relationship with his wife who is a permanent resident. I also do not consider that he is in a de facto relationship with the woman, who is a permanent resident, mentioned in his notice dated 19 February 2011 to the Department of Immigration and Citizenship.
Age[18]
[18] Consideration of which is provided for by Direction [no.41] – Visa refusal and cancellation under s 501, para 11(3)(b).
52. The applicant is a young man. I do not consider that this factor operates to prevent his removal from Australia.
Health[19]
[19] Consideration of which is provided for by Direction [no.41] – Visa refusal and cancellation under s 501, para 11(3)(c).
53. There is no evidence of any medical condition that is suffered by the applicant which would operate to prevent his removal from Australia. The applicant confirmed to me that he is in good health.
Links to the country to which he would be removed[20]
[20] Consideration of which is provided for by Direction [no.41] – Visa refusal and cancellation under s 501, para 11(3)(d).
54. The applicant advised me that his parents live in New Zealand. It is fair to say that the applicant, when questioned, was not able to reveal details of his relatives in New Zealand. He acknowledges that he has siblings who would live in either Samoa or New Zealand. He also admitted that it is probable that he has other relatives, such as uncles and aunts, in New Zealand. If the applicant is removed to New Zealand he would have the support of his parents, although, they are not in good health. He would also have other family members that he can turn to for assistance. He also stated that he would have the support of his church in New Zealand.
Hardship likely to be experienced by the applicant or his immediate family members lawfully resident in Australia[21]
[21] Consideration of which is provided for by Direction [no.41] – Visa refusal and cancellation under s 501, para 11(3)(e).
55. I accept that the applicant would suffer hardship if he is forced to return to New Zealand as he would be separated from his son. However, I can presume that the applicant will have the support of his parents as well as a number of relatives. The applicant has stated that he should be able to find employment in New Zealand, which also provides social security benefits to its citizens.
56. The applicant, in his notice dated 19 February 2011 to the Department of Immigration and Citizenship, gave an answer of “no” to the question: “Do you have any concerns or fears about what would happen to you on return to your country of citizenship”. I have had regard to the fact that the applicant did not raise any concerns about a return to New Zealand.
Level of education[22]
[22] Consideration of which is provided for by Direction [no.41] – Visa refusal and cancellation under s 501, para 11(3)(f).
57. The applicant gave evidence that he attended primary school, intermediate school and high school in New Zealand. The documents disclose that the high school education of the applicant is equivalent to an Australian Grade Ten level. I am satisfied that the limited high school education of the applicant has not impacted adversely on his ability to present his claim. The applicant is a very articulate man. He has completed a business management course and has held managerial positions. The applicant has expressed interest in undertaking study for an MBA degree.
Whether the applicant has been formally advised in the past by the Department about conduct that brought him within the deportation provisions of the Act or the character provisions of the Act[23]
[23] Consideration of which is provided for by Direction [no.41] – Visa refusal and cancellation under s 501, para 11(3)(g).
58. The applicant has not been formally advised in the past about conduct that has brought him within the deportation provisions or the character provisions of the Act.
SHOULD THE DISCRETION TO CANCEL THE VISA BE EXERCISED?
59. I have concluded that the first, second, third and fourth primary considerations weigh strongly in favour of the cancellation of the visa of the applicant.
60. I also consider that the other considerations that are outlined in paragraph 11 of Direction 41 weigh slightly against the cancellation of the visa. However, under paragraph 11(2) of Direction 41, these other considerations, while being taken into account, will generally be given less weight than that given to the primary considerations.
61. After examining the circumstances of the primary considerations and the other considerations in Direction 41, I consider that the factors weighing in favour of cancellation of the visa certainly outweigh the factors against cancellation. In my view the discretion to cancel the visa should be exercised.
62. I am conscious that recently the President of this Tribunal and a Senior Member stated that “community values in Australia assess the right to live in Australia as a significant and beneficial right which should be conferred with care and only on persons deserving of the privilege”.[24]
[24] See Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690 at [50].
DECISION
63. I affirm the decision under review.
64. I make an order under s 35(2) of the Administrative Appeals Tribunal Act 1975 (Cth) that documents in the file of this application and any transcript of the hearing of this application not be published to any person apart from the respondent and his legal advisers and any legal advisor of the applicant.
I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, Senior Member
Signed: ..........[Sgd]..................................................................
Mark O’Brien, Research AssociateDate/s of Hearing 18 January 2012
Date of Decision 27 January 2012
The applicant was self-represented
Solicitor for the Respondent Amanda Graham
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