VKTT and Minister for Immigration and Border Protection (Migration) - [2018] AATA 3377

VKTT and Minister for Immigration and Border Protection (Migration) [2018] AATA 3377 (13 September 2018)
Division:GENERAL DIVISION
File Number(s): 2016/5192
Re:VKTT
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:13 September 2018
Place:Brisbane

The decision under review is affirmed.
................................[Sgd]........................................
Deputy President Dr P McDermott RFD
CATCHWORDS
IMMIGRATION – Refusal to revoke mandatory cancellation of a visa under s 501(CA) –applicant does not pass the character test – sentenced to 12 month period of imprisonment – protection of the Australian community and expectations of the Australian community weigh against revocation – best interests of minor children weighs in favour of revocation - other relevant considerations – non-refoulement obligations – strength, nature and duration of ties to Australia – considerations weigh against revocation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
CASES
MKKR and Minister for Immigration and Border Protection [2016] AATA 458
NSWQ and Minister for Immigration and Border Protection [2016] AATA 373
DMTJ and Minister for Immigration and Border Protection [2016] AATA 1018
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
BCR16 v Minister for Immigration and Border Protection [2016] FCA 965
SECONDARY MATERIALS
Ministerial 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
Deputy President Dr P McDermott RFD
13 September 2018
INTRODUCTION

This application is for the review of a decision of a delegate of the respondent dated

20 September 2016 not to revoke the cancellation of the Class TY Subclass 444 Special Category (Temporary) visa of the applicant pursuant to section 501CA of the Migration Act 1958 (Cth) (“the Act”).
BACKGROUND
The applicant was born in New Zealand in 1979. He first arrived in Australia in 2006 and has lived in Australia since that time on a Class TY Subclass 444 Special Category (Temporary) visa (“visa”).
New Zealand criminal offences
Commencing in 1996 the applicant committed numerous offences in New Zealand. Before the applicant arrived in Australia he was convicted of 46 criminal offences including aggravated robbery, burglary and theft, assault with a knife, threatening to kill or to do grievous bodily harm, and resist police; he was sentenced to terms of imprisonment from one month to three years. At the hearing the applicant agreed that he appeared before a New Zealand court on 16 different occasions. He agreed that in 1996 he was sentenced for violent offences. He agreed that in 1997 he was convicted of theft related offences and sentenced to eight concurrent terms of imprisonment. He agreed that in 1999 he was convicted of multiple violent offences including aggravated robbery. He agreed that between 2000 and 2003 he was convicted of a further six theft related offences and armed robbery, for which he was sentenced to a term of three years imprisonment. When the applicant arrived in Australia in March 2006 he failed to declare his convictions.
Australian criminal offences
After the applicant arrived in Australia he appeared before the courts on eight occasions for various offences.[1] The applicant has been sentenced to periods of imprisonment in Australia. On 30 March 2009 he was sentenced to three months imprisonment for four charges of driving a motor vehicle over the alcohol limit and driving without a licence. On 31 July 2009 he was also found guilty of wilful damage. On 30 November 2009 he was found guilty of breaching a probation order that was imposed on him for driving under the influence. On 5 January 2010 the applicant was sentenced to imprisonment for eight months for driving without a licence. On 23 November 2011 the applicant was sentenced to imprisonment for three months for driving without a licence, driving an unregistered and uninsured vehicle and other registration offences.
[1] Exhibit 1, T-Documents Volume 1, T2 at pp. 24-26.
On 21 June 2013 the Department advised the applicant that a decision had been made not to cancel his visa but that further criminal offending may result in the cancellation of the visa. At the hearing the applicant confirmed that he received that warning letter and that, after receiving that letter, he had appeared before an Australian court on four occasions.
On 4 September 2015 the applicant was convicted of a number of offences including the unlawful possession of weapons and explosives. On 11 February 2016 the applicant was convicted of a number of offences including a breach of probation order, the possession of tainted property, the unlawful use of a motor vehicle, the dangerous operation of a motor vehicle, going armed so as to cause fear, assault of a police officer as well as the possession of dangerous drugs. In 2016 he was convicted of the motoring offences of disobeying the speed limit and driving without a driver’s licence.
DECISIONS
Mandatory cancellation of visa
On 2 June 2016 a delegate of the respondent cancelled the applicant’s visa pursuant to section 501(3A) of the Act as the respondent was satisfied the applicant did not pass the character test due to his substantial criminal record. The applicant requested that the cancellation decision be revoked.
Decision under review
On 20 September 2016 a delegate of the respondent made a decision to not revoke the cancellation decision made under section 501(3A) of the Act.
JURISDICTION
The Tribunal has jurisdiction to review the decision of the delegate of the respondent under s 500(1)(ba) of the Act.
CHARACTER TEST
Substantial criminal record
Section 501(6)(a) of the Act provides that a person does not pass the character test if he or she has a substantial criminal record. Section 501(7)(c) of the Act provides that, for the purposes of the character test, a person has a “substantial criminal record” if he or she has been sentenced to a term of imprisonment for a period of 12 months or more.
On 11 February 2016 one of the periods of imprisonment to which the applicant was sentenced was for 12 months.[2] As the applicant was sentenced to a period of imprisonment of 12 months or more, he has a substantial criminal record as defined under s 501(7)(c) of the Act and does not pass the character test.
[2] Exhibit 2, T-Documents Volume 2, T11, at p. 297.
MINISTERIAL DIRECTION
Section 499 of the Act empowers the respondent to give written directions about the performance of functions and the exercise of powers under the Act. The effect of this section is that the Tribunal is required to comply with Ministerial Direction No 65 (Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA) (“the Direction”). The Direction commenced operation on 22 December 2014 and still remains in force.
The Preamble to the Direction provides that the objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.[3] An objective of the Direction is to provide a framework within which decision-makers approach their decision of whether to revoke a mandatory cancellation under s 501CA of the Act.[4]
[3] Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA at [6.1(1)].
[4] Ibid at [6.1(4)].
The Preamble specifies seven principles which provide a framework within which decision-makers should approach their specific task:[5]
(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.
(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.
[5] Ibid at [6.3].
Paragraph 8 of the Direction states:
…
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
In deciding whether to revoke the mandatory cancellation of the applicant’s visa, paragraph 13(2) of the Direction provides that 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.
I will consider each of these primary considerations in turn.
Primary consideration A – The protection of the Australian community from criminal or other serious conduct
Paragraph 13.1(1) of the Direction states:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non‑citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 13.1(2) of the Direction states that decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of conduct
The applicant has an extensive history of criminal offending. At the hearing of his application he was taken through his lengthy criminal history. The applicant has not challenged the submission of the respondent made in final submissions that over a 20 year period, the applicant has been convicted of 46 criminal offences in New Zealand and 16 criminal offences in Australia.
Paragraph 13.1.1(1) of the Direction provides guidance on a number of relevant considerations in assessing the nature and seriousness of the applicant’s conduct.
The Direction refers to the principle that violent offences are viewed very seriously (9.1.1(1)(a)). The applicant has been convicted of a number of violent offences. In New Zealand the applicant was convicted of a number of violent offences including aggravated robbery (2000 and 2003), assaulting a person with a stab/cutting instrument (1997), common assault (1996) and threatening to kill and grievous bodily harm (1997).
In New Zealand he was also been convicted of a number of firearm offences (1996, 2000 and 2001). In Australia he continued his involvement with firearms. In 2015 he was convicted of unlawful possession of a weapon. In 2016 the applicant was also convicted of the offence of going armed so as to cause fear in enforcing a drug debt. The Magistrate then remarked: “Now, what makes it difficult for you is that you were the one who drove the car in, you were the one who produced the weapon, you were the one who seemed to lead the class of clowns when you got out of the car”. The applicant responded “Yes” to this statement by the Magistrate, who referred to the “strongarm tactics” of the applicant. In giving evidence before the Tribunal the applicant confirmed that the weapon he had was a revolver and that the possession of explosives conviction related to his possession of ammunition. These recent offences are certainly serious offences of violence.
In 2016 the applicant was also convicted of the offence of assaulting a police officer. Paragraph 13.1.1(1)(b) of the Direction provides guidance in referring to crimes committed against government officials in the performance of their duties. The Magistrate informed the applicant that the police officers were acting in the performance of their duties.
The Direction provides guidance in Paragraphs 13.1.1 (c),(d) and (e) in referring to the sentence imposed, the frequency of the offending, whether there is a trend of increasing seriousness and the cumulative effect of repeated offending. The fact that the applicant has been recently sentenced to a number of terms of imprisonment is significant as, under sentencing principles, a sentence of imprisonment is usually a sentence of last resort. The applicant points to the maximum sentence for an offence being of 12 months imprisonment. The fact that this sentence was for that length of time does not detract from the fact that it was imposed for a violent offence.
My assessment is that the applicant has certainly been convicted of serious violent offences. He has recently been convicted of the unlawful possession of a firearm, being a revolver, and bullets. That weapon was used by the applicant when he committed his offence of going armed so as to cause fear, and the victim was certainly aware that the weapon was concealed. The dangerous driving offence was an offence of violence because the applicant unlawfully drove the victim’s car and attempted to use the vehicle to harm the victim who was injured.
The assault on a police officer is also a violent offence. The Magistrate advised the applicant that it was fortunate that the police did not shoot him on that occasion.
The Direction provides guidance in Paragraph 13.1.1 (f) in referring to whether a non-citizen has provided false information to the department, including by not disclosing prior criminal behaviour. In 2006 the applicant provided false information when he failed to declare his extensive criminal history on his incoming passenger card. The applicant at one time denied signing the incoming passenger card. At the hearing the applicant gave contradictory evidence as to who completed the incoming passenger card. Initially the applicant stated that his brother-in-law completed the incoming passenger card and he then stated that he completed the card.
The Direction provides guidance in Paragraph 13.1.1 (g) in referring to whether the non-citizen has offended since being formally warned in writing about the consequences of further offending in terms of the non-citizen’s migration status. Such a letter was sent to the applicant on 21 June 2013. During the hearing the applicant acknowledged that after receiving the warning he had the opportunity to address his behaviour but that he didn’t stop offending. The applicant also acknowledged that he was aware that his visa could be cancelled if he continued to offend. The applicant had four court appearances after this warning was sent to him. The applicant was found guilty of serious violent offences after this warning was given to him.
Risk to the Australian community
Paragraph 13.1.2 of the Direction concerns “The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct”. In considering the risk to the Australian community, paragraph 13.1.2(2) states decision‑makers must have regard to, cumulatively: (a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and (b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The use by the applicant of dangerous drugs has been, on his admission, one reason why he has committed the offences. The fact that in 2015 and 2016 the applicant has been in possession of dangerous drugs is a matter of concern. It is also a matter of concern that the applicant has been convicted of weapons offences. The applicant was convicted of going armed so as to cause fear in respect of an incident when he was enforcing a drug debt, which means that he was, at the very least, assisting persons who have been involved in the sale of drugs. The Magistrate emphasised that the applicant led the persons who were enforcing the debt; his role certainly does not appear peripheral. The applicant poses a clear risk to the Australian community by continuing to have possession of unlicensed firearms. The fact that the applicant has been convicted of weapons offences in both New Zealand and Australia has not deterred his desire to use unlicensed firearms.
The applicant has been convicted of two charges of attempted fraud and dishonestly gaining a benefit or advantage. He has also been convicted of the possession of tainted property. Fraud offences result in financial and emotional harm to individuals in the community.
The tenor of the evidence of the applicant is that he has been a long-term drug user. In his evidence before the Tribunal he stated that he started using drugs and alcohol when he was a teenager. His misuse of alcohol has caused difficulties as he has been convicted of four charges of driving a motor vehicle over the alcohol limit.
The hearing of this application was delayed to provide the applicant with the opportunity to submit evidence as to his prospects for rehabilitation. While in immigration detention the applicant was seen by two psychologists (Ms Sonya Patrina and Mr Mercurio Cicchini). The report of Mr Cicchini was tendered in evidence.[6] Mr Cicchini considers that the applicant has mental health issues from his childhood. When giving evidence Mr Cicchini confirmed that he was unaware of the criminal history of the applicant and that his role was not to provide a forensic examination of that criminal history. Mr Cicchini also confirmed that there was no contract to provide the applicant with treatment for drug or substance abuse.
[6] Exhibit 24, statement of Mercurio Cicchini.

The applicant told the Tribunal of the assaults that he experienced in prison; he stated that he was assaulted in December 2015, February 2016 and June 2016. He has mentioned that the circumstances of the third assault in prison “changed the outcome of my experience in prison in Australia, that it’s time for me to change my life”. While I appreciate that the applicant has indicated an intention to change his life, which he reaffirmed in his final letter of reply, there is the difficulty in that he has been a long-term drug and alcohol user who has not had treatment for his drug and alcohol condition. While in custody he has undertaken an anger management course and a good health course.
The applicant has stated that he has enquired with Drug Arm Australasia about services if he is released. However, he has not previously taken the initiative to seek treatment for his drug and alcohol condition. There is no cogent evidence before me that the applicant has been rehabilitated and is deterred from drug use.
Driving whilst under the influence of alcohol certainly places the community at serious risk. The driving of an unregistered and uninsured vehicle demonstrates a disregard for community safety, as does his conviction for dangerous driving.
When he was convicted of dangerous driving the sentencing Magistrate made the following remarks which were addressed to the applicant:
“Now, as a consequence of your presence, particularly the unknown nature of the weapon that had been concealed under a cloth, [the victim] showed a bit of intelligence and took flight. That was the impact of the fear that you instilled in that person. Now, he abandoned his vehicle. He didn’t run too far, but when he did come back, by this time, you had taken possession of the vehicle – in fact, you were driving it. Now, I don’t see any deviation where you drove towards him. I saw that you accelerated in the direction which would have been a northerly direction. [The victim] was in front of the vehicle. He jumped to get out of the road of the car. The car did hit him and he has landed on his hip. He seemed to be struggling with what appeared to be an injury on what I thought was his left hip. He seemed to be hobbling a bit. But then that seems to be the extent of it.”[7]
It is apparent that on that occasion the applicant used the victim’s vehicle as a weapon against the victim, who was hit by the vehicle and appeared to have been injured. What is a matter of concern is that the applicant was already on probation when he committed that offence.
[7] Exhibit 1, T-Documents Volume 1, T2, p.46.
In assessing the likelihood of further criminal conduct, I have carefully examined the criminal history of the applicant. This shows that the applicant has been subject to a number of community-based orders and probation orders. After the applicant received the warning letter from the Department he was convicted of the breach of a bail condition and the breach of a probation order. I have come to the conclusion that community-based orders and probation orders, as well as the warning letter from the Department, have not deterred his criminal conduct. The applicant has been given many opportunities in the community previously, by way of community-based orders prior to imprisonment and a warning by the department.
In my assessment, the protection of the Australian community from criminal or other serious conduct weighs more heavily in favour of not revoking the cancellation of the applicant’s visa, due to the nature and seriousness of the applicant’s conduct and the risk to the community should the applicant commit further offences. The long history of the applicant in using firearms and his recent possession of bullets is a matter of grave concern and is a serious risk to the community.
I am required by the Direction (at [13.1.2(2)(a)]) to have regard to “the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct”. Drug-debt intimidation is a pervasive issue in our community and the majority of drug users would not report such attacks. The use of firearms in drug-debt intimidation can result in death. Drug-debt deaths are increasingly reported in the media.
I am also required by the Direction (at [13.1.2(2)(b)]) to consider “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; and evidence of rehabilitation achieve by the time of the decision, giving weight to time spent in the community since their most recent offence”. The fact that the applicant injured the victim makes me conclude that it is highly probable that he will inflict violence in the future. The serious violent offences are recent and there is no cogent evidence of his rehabilitation. Until his imprisonment he continued to engage in violent behaviour. This recent conduct is, in my opinion, an indication of his future conduct.
Primary consideration B – The best interests of minor children in Australia
Paragraph 13.2 of the Direction requires me to consider whether the revocation of the cancellation decision is in the best interests of minor children in Australia affected by the decision.[8]
[8] Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA at [13.2(1)].
The applicant has two minor children and two minor grandchildren in Australia. The applicant has been providing both financial and emotional support to his children. The children live with their mothers who provide a parental role under the Direction ([13.2(4)]). The youngest child of the applicant, a daughter, is aged 8 years of age and the applicant stated that he has decided not to be in touch with her mother who has a new partner. The applicant informed the Tribunal that he has not been in touch with the child since he was in the detention centre. The other child, a son, is aged 17 years and will soon become an adult if he is not already an adult. The applicant informed the Tribunal that he called his son every week. He last saw his son a year ago.
I consider that the revocation of the visa cancellation is in the best interests of the children.
Primary consideration C - Expectations of the Australian community
The Australian community expects non-citizens to obey Australian laws. Paragraph 6.3(3) of the Direction provides that a non-citizen who has committed a serious crime of a violent nature against vulnerable members of the community, such as minors, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
In considering the expectations of the Australian community I have taken into account the long and repeated history of offending of the applicant. I have also taken into account that he has re-offended since he was formally warned about the consequences of further offending in terms of his migration status. The applicant was warned by the Department of the fact that visa cancellation may be reconsidered if he were to commit further offences or otherwise breach the character test, by way of a Notice issued on 21 June 2013. Since receiving that warning notice the applicant has made four court appearances in regards to his criminal conduct.
The primary consideration of the expectations of the Australian community weighs heavily in favour of not revoking the cancellation of the applicant’s visa. The Australian community would, in my assessment, expect that the applicant should not hold a visa when having regard to his record of offending and the fact that he had been given a warning regarding his conduct. The fact that he has probation orders weighs against the applicant in this assessment, as does his failure to reveal his criminal history when he entered Australia in 2006.
Other Considerations
Paragraph 14(1) of the Direction provides that I have to consider the other considerations where they are relevant.
Non-refoulement obligations
The applicant submits that the Australian Government is under an obligation not to return the applicant to New Zealand. The applicant has expressed the view that if he is returned to New Zealand he could face potential dangers to his safety.[9] It has been submitted that the applicant will likely be injured or killed if he is returned to New Zealand.
[9] Exhibit 1, T-Documents Volume 1, T2 at pp. 84 and 88.
The respondent has submitted that it is not necessary for the Tribunal to consider Australia’s international non-refoulement obligations as the applicant has had the opportunity to make a protection visa and it has been assessed that the applicant is not a person in respect of whom Australia has obligations under s 36(2)(a) of the Act. In final submissions the respondent provided decisions of the Migration & Refugee Division of this Tribunal in both redacted and unredacted forms, in which this assessment has been made. The applicant has not submitted a reply through his legal representatives to the final submissions of the respondent. The Tribunal has permitted the applicant to submit a letter as his reply. In that letter he has not submitted any new evidence to support his claims to protection.
The respondent has referred to a number of decisions of this Tribunal,[10] as well as a number of court decisions,[11] in support of the position that the Tribunal is not required to conduct an extensive assessment of the applicant’s claims to fear harm in New Zealand.
[10] MKKR and Minister for Immigration and Border Protection [2016] AATA 458 at [86]; NSWQ and Minister for Immigration and Border Protection [2016] AATA 373 at [69]; and DMTJ and Minister for Immigration and Border Protection [2016] AATA 1018 at [98].
[11] BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 and BCR16 v Minister for Immigration and Border Protection [2016] FCA 965.
With respect to the reliance of the respondent on BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96, it is important to have regard to an order made by Bromberg J in DWU17 v Minister for Immigration and Border Protection (no. VID717/2017, 15 January 2018). No reasons of his Honour were available as the order was made by consent. However, a note to the order states that a decision was affected by jurisdictional error, of the kind made in BCR16 v MIBP [2017] FCAFC 96, when a finding was made that it is unnecessary to consider non-refoulement obligations when they are advanced as a basis for why the cancellation of a visa should be revoked.
I consider that, having regard to s 499(2A) of the Act, it is incumbent on me to comply with the Direction and consider Australia’s international non-refoulement obligations. This is because the Direction provides that claims which give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s 501CA of the Act the mandatory cancellation of their visa ([14.1(3)]).
In his evidence in chief the applicant was asked if he had given any thought to what could happen if he returned to New Zealand. The applicant remarked: “Going back to New Zealand is something that I need to face, face situations that I left there”. In his evidence before the Tribunal he did not give any evidence upon which I could base a finding that he would suffer significant harm if he is removed from Australia to New Zealand. He has previously asserted in a Departmental interview that he left New Zealand in 2006 after issues with a gang and he still had issues with the gang. There is no plausible evidence that after some 12 years he would be in danger if he returned to New Zealand. There is, for example, no evidence from the New Zealand Police to support the contentions of the applicant that he would face danger from gangs. I do not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country that there is a real risk that the applicant will suffer significant harm.
Strength, nature and duration of ties
The applicant has lived in Australia from the age of 27 years. At the date of the hearing he was 38 years of age. His mother, children and grandchildren live in Australia. He also has a number of relatives in Australia.
A number of witness statements were provided in support of the applicant. These statements were submitted by family members, friends, previous colleagues and other acquaintance, and were indicative of the fact that the applicant has strong ties to the Australian community and has the support of his friends and family. The son and daughter of the applicant also gave evidence to indicate their support for the applicant, as did his first cousin and her husband.
The respondent relies upon para 14.2(1)(a) of the Direction which states that decision‑makers are to 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.
It is apparent from the applicant’s criminal history that he began offending three years after his arrival in Australia. This requires me to afford less weight to the factor regarding length of time he has resided in Australia. I consider that the applicant has positively contributed to the Australian community by his employment. My consideration of the strength, nature and duration of the applicant’s ties to Australia weighs somewhat in favour of the revocation of the cancellation of the visa.
Impact on Australian business interests
There is no evidence that Australian business interests would be impacted if the cancellation of the applicant’s visa is not revoked.
Impact on victims
Paragraph 14.4 of the Direction requires that consideration be given to the impact of a decision to not revoke on members of the Australian community, including victims of a person’s criminal behaviour and victims’ family members, where that information is available.
There is no evidence before the Tribunal that victims of the applicant’s offences will be impacted by the decision to revoke the cancellation of the applicant’s visa.
Extent of impediments if removed
The Direction states at paragraph 14.5(1) that another consideration is:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)   The non-citizen’s age and health;
b)   Whether there are substantial language or cultural barriers; and
c)   Any social, medical and/or economic support available to them in that country.
The applicant is a young man and there is no medical evidence that his health conditions would preclude him from going to New Zealand. The applicant in evidence confirmed that prior to coming to Australia he had resided in New Zealand for about 26 years and that there are no substantial language and cultural barriers to him returning to New Zealand. The applicant informed the Tribunal that he was able to get employment “anywhere”. New Zealand provides social welfare and public health to its citizens. This other consideration does not weigh in favour of the revocation of the cancellation of the visa.
Other
Having reviewed the applicant’s submissions and letter of reply, I am satisfied that there are no further other considerations relevant to deciding whether or not to revoke the cancellation of the applicant visa. Under paragraph 14 of the Direction there is a reference to the other considerations not being limited to those set out above, but in my assessment, there are no other considerations which are relevant here.
CONSIDERATION
I am satisfied that the applicant does not pass the character test in the Act.
I consider that the applicant has been convicted of serious violent offences there is an unacceptable risk that the applicant will again commit serious offences if his visa was restored. I also consider that the expectations of the Australian community are that he would not be allowed to remain in Australia. The primary considerations of the protection of the Australian community from criminal or other serious conduct (primary consideration 1) and the expectations of the Australian community (primary consideration 3) weigh heavily in favour of not revoking the cancellation of the applicant’s visa.
There are considerations which weigh in favour of revoking the cancellation of the visa. These are the primary consideration of the best interests of minor children in Australia (primary consideration 2) and the other consideration of the strength, nature and duration of the applicant’s ties to Australia. However, these considerations are not outweighed by the two primary considerations which weigh heavily in favour of not revoking the cancellation of the applicant’s visa. This is a case where it is appropriate that one or more primary considerations, namely primary considerations 1 and 3, should outweigh primary consideration 2 (see the Direction at [8(5)]). Also, primary considerations 1 and 3 should, in the opinion of the Tribunal, be given greater weight than the other consideration of the strength, nature and duration of the ties to Australia (see the Direction at [8(4)]).
I do not consider that there is any reason why the decision to cancel the applicant’s visa should be revoked.
CONCLUSION
I consider that the decision that was made by the delegate of the respondent on 20 September 2016 is the correct and preferable decision. In accordance with s 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) I affirm the decision.
Having regard to the fact that the applicant has made an application for a protection visa I have decided to allocate a pseudonym for his name and that a confidentially order be made in respect of the decision of the Migration & Refugee Division of this Tribunal that has been tendered by the respondent.
DECISION
I affirm the decision under review.

I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

..........................[Sgd].............................
Associate
Dated: 13 September 2018

Dates of hearing: 15 and 18 December 2017

Date final submissions received: 22 August 2018

Counsel for the Applicant: Geoff Foster

Solicitor for the Applicant: Zali Burrows

Solicitors for the Respondent: Clayton Utz

Dates of hearing:	15 and 18 December 2017
Date final submissions received:	22 August 2018
Counsel for the Applicant:	Geoff Foster
Solicitor for the Applicant:	Zali Burrows
Solicitors for the Respondent:	Clayton Utz