Werner and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 336
•2 March 2021
Werner and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 336 (2 March 2021)
Division:GENERAL DIVISION
File Number(s): 2020/8408
Re:Steven Werner
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member M Griffin QC
Date:2 March 2021
Place:Sydney
The Tribunal sets aside the reviewable decision and in substitution, the mandatory cancellation of the Applicant’s visa is revoked.
...............................[sgd].........................................
Senior Member M Griffin QC
CATCHWORDS
MIGRATION – mandatory cancellation of visa – failure to pass character test – multiple driving offences – domestic violence assault offences – accessory after a robbery – protection of the Australian community – best interests of minor children in Australia affected by the decision – expectations of the Australian community – strength, nature and duration of ties – impact on victims – extent of impediments if removed – decision set aside and substituted
LEGISLATION
Migration Act 1958(Cth) ss 499, 500, 501, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member M Griffin QC
2 March 2021
BACKGROUND
The Applicant is seeking review of a decision of a delegate of the Respondent (the Minister) dated 15 December 2020, refusing to revoke cancellation of his special category (subclass 444) visa.
At the commencement of the hearing, a jurisdictional issue was raised as to whether the Applicant had made a timely request to the Minister in accordance with the invitation issued pursuant to subsection 501CA(3) of the Migration Act 1958 (Cth) (the Act).
At the conclusion of the evidence, the Tribunal found that there was no relevant jurisdictional issue in relation to this application.
The Applicant is a New Zealand citizen, born in November 1987. His cultural background is somewhat complicated. The Applicant’s mother is of Tongan descent and his father is Austrian. Both parents, together with his sister, live in Austria. The Applicant is unsure whether he is entitled to citizenship of Tonga and/or Austria.
The Applicant lived in Tonga until he was seven years of age and then moved to Germany until his early teens when he returned to Tonga. For about three years prior to the age of 19, the Applicant lived in New Zealand and then came to Australia on 14 September 2006, leaving Australia only once for a period of about a month in 2007/2008.
The Applicant was married to “S” in August 2008 and there are three children of that union; two boys aged 10 and nine, and a daughter three years of age.
The relevance of the Applicant’s children, who are Australian citizens, will be discussed later in relation to Direction No. 79.
ISSUES
The issue in this review is whether the original decision to cancel the Applicant’s visa should be revoked pursuant to section 501CA of the Act. The Tribunal may revoke the original decision if the Tribunal is satisfied:
(a)that the Applicant passes the character test as defined by section 501 of the Act; or
(b)
that there is another reason why the original decision should be revoked
(paragraph 501CA(4)(b)).
RELEVANT LEGISLATION AND POLICY
Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person: see subsection 501CA(1).
Subsection 501CA(4) provides that:
4The 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.
Paragraph 501(6)(a) provides that a person does not pass the "character test" if the person has "a substantial criminal record". A person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more: paragraph 501(7)(c).
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions pursuant to section 499 of the Act to guide decision-makers in the exercise of the power in subsection 501CA(4) (Direction No. 79 which commenced on 28 February 2019). The relevant paragraphs of which are set out below and describe the framework within which the Tribunal’s discretion is to be exercised.
The Preamble of Direction No. 79 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly include that:
(a)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens;
(b)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere;
(c)a non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to forfeit the privilege of staying in Australia;
(d)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;
(e)while Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period of time, 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; and
(f)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.
Part C of Direction No. 79 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises three "primary considerations" and several specified, but non-exhaustive, "other considerations", which must be taken into account.
Pursuant to Part C of Direction No. 79, the Tribunal must, to the extent that they are relevant to each case, take into account three primary considerations and other considerations. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations. These principles are of course dependent upon the facts and circumstances of each case.
The three primary considerations are:
(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.
Primary Consideration 1 – Protection of the Australian community
Paragraph 13.1 of Direction No. 79 provides:
(1)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.
(2)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.
The two limbs of paragraph 13.1(2) that the Tribunal must consider when assessing the protection of the Australian community are set out below.
The nature and seriousness of the conduct
Sub-paragraph 13.1.1 of Direction No. 79 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes, in summary:
(a)the principle that violent and/or sexual crimes are viewed very seriously;
(b)the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)the principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)the sentence imposed by the courts for a crime or crimes, subject to (b) above;
(e)the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status; and
(i)where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention is serious.
The risk to the Australian community
Sub-paragraph 13.1.2 of Direction No. 79 states that decision-makers must have regard, cumulatively, to the following:
(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.
Primary Consideration 2 – Best interests of minor children in Australia affected by the decision
In relation to each child under the age of 18, decision-makers must decide whether revocation is in the best interests of that child.
In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Primary Consideration 3 – Expectations of the Australian community
Paragraph 13.3 of Direction No. 79 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.
The principles to be applied, as set out in paragraph 6.3 of Direction No. 79, state that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australia community. It is also the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes.
The length of time a non-citizen has been making a positive contribution to the Australian community and the consequences of the visa refusal or cancellation for minor children and other immediate family members in Australia are relevant considerations.
Other Considerations
The Tribunal must also take into account other considerations insofar as they are relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties to Australia;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
International non-refoulement obligations
The considerations at paragraph 14.1 of Direction No. 79 include (but are not limited to):
(a)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations;
(b)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa;
(c)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled);
(d)Where a non-citizen makes claims which may give rise to international nonrefoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked;
(e)Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated.
Strength, nature and duration of ties
The considerations at paragraph 14.2 of Direction No. 79 include:
(a)how long the non-citizen has resided in Australia, including the age of arrival in Australia, the period of offending and positive contributions to the Australian community;
(b)the strength, duration and nature of any family or social links with Australian citizens and Australian residents, including the effect of non-revocation on the non-citizen’s immediate family.
Impact on Australian business interests
Paragraph 14.3(1) of Direction No. 79 notes an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Impact on victims
Paragraph 14.4(1) of Direction No. 79 provides:
'Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.'
Extent of impediments if removed
Paragraph 14.5(1) of Direction No. 79 provides that the extent of impediments if removed requires consideration of 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: age and health; whether there are substantial language or cultural barriers; and the availability of any social, medical and/or economic support.
DISCUSSION
Character Test
In accordance with paragraph 501(6)(a) of the Act, the Applicant has a “substantial criminal record” and accordingly, he does not pass the character test.
The question for the Tribunal is whether it is satisfied that there exists another reason for revoking the cancellation decision.
Protection of the Australian community (past conduct and future risk)
The Applicant has worked in a variety of different jobs, primarily, however, as a welder. On the evidence, it appears that he has a good work history, contributing to his children’s welfare even through times of separation from his wife from whom, the wife says, separation occurred in 2018. As with all such matters, there is no clear delineating date or even timeframe and the Applicant has a somewhat different view.
The Applicant has been convicted of a number of offences. Set out below is a helpful table, provided by the Respondent. Its contents are not in issue.
Date Offence Sentence 3 February 2010 Drive with middle range PCA $500 fine; court costs; and disqualification for six months 23 March 2010 Class A m/v exceed speed >20km/h <=30 km/h $100 fine 23 March 2010 Drive while disqualified from holding a licence $1,000 fine; imprisonment: six-month suspended on enter bond s 12; court costs; and disqualification for two years 22 March 2011 Common assault (DV)-T2 Two-year s 9 bond 19 December 2011 Contravene prohibition/restriction in AVO (Domestic) Two-year s 9 bond, supervised by NSW Probation and Parole 19 December 2011 Common assault (DV)-T2 (call up) 100 hours’ community service 17 January 2018 Responsible person/custodian not disclose driver’s details $1,600 fine 15 July 2019 Drive with high range PCA – 1st off Imprisonment: 15 July 2019 Police Pursuit – not stop – drive dangerously – 1st off – T2 Imprisonment (aggregate): 18 months, with a non-parole period of nine months; disqualification for nine months; and alcohol interlock program for 24 months. 15 July 2019 Drive, licence suspended under s 66 Fines Act – 1st off Imprisonment (aggregate): 18 months, with a non-parole period of nine months 15 July 2019 Contravene prohibition/restriction in AVO (Domestic) Imprisonment (aggregate): 18 months, with a non-parole period of nine months 15 July 2019 Common assault (DV)-T2 Imprisonment (aggregate): 18 months, with a non-parole period of nine months 15 July 2019 Failure to appear in accordance with bail acknowledgment Section 10A conviction with no other penalty 15 April 2020 Accessory after the fact to a serious indictable offence 12-month intensive correction order under the supervision of NSW community corrections
The Tribunal notes that there is a somewhat increasing level of seriousness in the offending. Much of the early offending was dealt with by non-custodial sentences although the Tribunal notes that there were breaches of orders made by the Courts, which is troublesome in terms of the Applicant’s response to proper orders of the Courts and this ultimately affects consideration of the question of risk.
The most serious offending was dealt with on 15 July 2019 in the District Court which concerned serious driving offences involving police pursuit and combined circumstances of a second assault on his wife which is commonly referred to as a domestic violence offence. The first domestic violence offence occurred in 2011 and was dealt with by way of a two-year good behaviour bond (section 9 bond).
Offences of domestic violence both generally and by reference to Direction No. 79 are regarded as particularly serious offences. In this case, the circumstances of those assaults are unfortunately the usual type of offending, accompanied at first by disagreement between both parties escalating the situation where the offender commits an offence of common assault. The Tribunal notes, however, that no weapon or extreme violence was used, as can be seen by the charge which is a basic assault charge. That, however, is not to say that the Tribunal does not view the Applicant’s offending as serious. Furthermore, there was a sense of escalation between the circumstances of the first and second assaults. They were, it is noted, separated by a number of years.
The co-relative offence in relation to the driving was factually related to the common assault, which is particularly serious. There are, on the Applicant’s police record, other driving offences that displayed a disregard for rules, regulations and the law, as does the Applicant’s breaches of bonds and the domestic violence orders. It hardly needs to be stated that such driving offences have the potential for serious injury to passengers in the offender’s vehicle and to road users and to other persons.
It is necessary to look carefully at the Applicant’s offending in order to assess properly both the seriousness of the offending and the risk that he poses in the future, or indeed, whether there is any risk.
As to the Applicant’s total offending history, it should not be regarded in the most serious category. That is so, in part, by reference to the sentences which were imposed. For example, the last sentence imposed, which was for a charge of accessory to robbery, was a 12 month intensive correction order. Overall, the Applicant’s level of offending should be regarded as somewhat less than mid-range.
The Tribunal notes that the Applicant remained conviction-free for a period of seven years between 2011 and 2018, suggestive of the fact that because of the previous nature of his offending, that behaviour would have been exposed particularly because the Applicant’s wife would have reported such a violent conduct in fact it had occurred.
The Tribunal is therefore of the view that the Applicant has not only had an extended period of proper behaviour but that he is capable of moderating his behaviour and controlling his behaviour. This is a significant factor in the Applicant’s favour when assessing the issue of risk of offending in the future.
The Applicant impressed in evidence as someone who was determined to behave appropriately and in a law-abiding way in the future. That carries some weight but it is the objective evidence, if there is any, which is of real assistance in assessing risk.
There are two matters. The first is that the Applicant’s wife gave evidence in a thoroughly reasonable, credible and realistic fashion. The Tribunal found her evidence should be accepted. The Applicant submitted and his wife impliedly suggested that she would not have given evidence on his behalf had she not believed that he had undergone a significant change in attitude. The Tribunal accepts that she was in a position, having been married to the Applicant for some time, to properly make such a judgement.
The second matter is that the Applicant, himself, swears that his attitude to alcohol and offending in general has changed. Although the Respondent suggested that the Applicant in cross-examination did not demonstrate an appreciation of the reasons for his offending and lacked appropriate insight, the Tribunal is of the view the Applicant does understand the triggers which caused offending in the past. Furthermore, in recent times whilst in immigration detention, he has pursued courses, albeit online courses, including anger management, drug and alcohol addiction management. The undertaking of these courses suggests a determination to change.
Another aspect of the evidence is that the Applicant says that although there was unrest where he was detained in immigration detention on Christmas Island, he did not involve himself in those activities. This shows a commendable attitude to understanding and appreciating boundaries and rules and regulations.
Furthermore, the history of the Applicant whilst in immigration detention, although not perfect, nonetheless, the Tribunal is prepared to accept that he has behaved well in the difficult circumstances of immigration detention. In fact, as to his work ethic, he was praised for his conduct.
As to the first primary consideration which is one of three that in the ordinary course should receive greater weight, the level of seriousness of the Applicant’s offending behaviour has been discussed above.
As to the risk to the Australian community, should the Applicant commit further offences, it is the Tribunal’s opinion, having regard to what has been said above, that there is some objective evidence that the Applicant has actually made some changes in his attitudes to matters which promoted his offending. He has completed courses whilst in immigration detention, and further, whilst in that institution, he has displayed relatively good behaviour, suggestive of some rehabilitation. Furthermore, the Tribunal places importance and accepts the Applicant’s wife’s assertions that the Applicant has changed for the reasons also stated above.
No consideration of future risk can ever be mathematically certain or precise as a prediction. Nonetheless, on the objective evidence and the Tribunal‘s findings, the risk to the Australian community, should the Applicant be allowed to remain in Australia, is largely minimal.
The Tribunal also notes that apart from the driving offences which may have had or have the potential to affect a wide variety of citizens, the assault offences were committed against his wife effectively in a domestic setting. The parties have now separated and there is much less likelihood of those offences occurring because of the situational nature of the offending.
Overall, the Tribunal regards this consideration as having limited weight against the interests of the Applicant.
Best interests of minor children in Australia
There are three relevant minor children whose ages are 10, nine and three years. The Applicant is the father of all three children and he has a particular association and affection for the two eldest who are boys. He gave evidence that he loves all three children and wishes to be actively part of their lives as he had been prior to incarceration and immigration detention.
The Applicant’s wife supports this evidence and there is no reason to suppose that the Applicant does not have a close and loving relationship with the children. The Tribunal finds that the Applicant will be significantly emotionally affected should he be removed from the children. It is undoubtedly correct that the children, on the evidence, would likewise be detrimentally affected should the Applicant be removed from Australia.
Contrary to the Applicant’s interests in this matter is evidence that the Applicant was violent to his wife in the presence of the children. Overall, however, this is outweighed by the very positive relationship the Applicant has with his children.
The Applicant has contributed emotionally and financially to the welfare of his children in the past. On the evidence, the two boys need the guidance of their father at this stage in their lives as they are demonstrating inappropriate behaviour and conduct about which the mother appears to have little control. It is, therefore, an important matter, in the Tribunal’s view, for the father to be actually physically present in the lives of the two boys in particular, apart from the general matters discussed above in relation to the relationship between the father and all three children.
The Tribunal does not accept the Respondent’s assertion that because the Applicant has been absent from the children’s lives during the period of his incarceration, this has led to a lessening of his relationship with the children.
Furthermore, not only did the children visit the Applicant whilst in custody on one occasion, he has maintained regular contact via social media and video and audio calls with his children. Whilst that type of contact would be possible were the Applicant to reside in New Zealand, the Tribunal regards such contact as far from appropriate in the circumstances of this case.
This consideration is regarded by the Tribunal as being particularly important and carries considerable weight in the overall assessment of the Direction No. 79 considerations.
This consideration weighs heavily in support of revoking the cancellation of the Applicant’s visa.
Expectations of the Australian Community
This consideration has been the subject of extensive judicial discussion and ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185). It is not for the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the “norm” stipulated in Direction No. 79 at paragraph 13.3(1).[1]
[1] FYBR v Minister for Home Affairs [2019] FCAFC 185, [68] (Charlesworth J), [93], [100]-[104] (Stewart J).
In this case, the Tribunal has considered the seriousness of the Applicant’s offending history together with the risk of his re-offending. Those matters, taken into account with all other personal circumstances relating to the Applicant, including the length of time the Applicant has lived in Australia and his good work history and those other circumstances put forward by him in submissions which are in his favour, do not negate the expectations of the Australian community which require that this consideration weighs against the Applicant. There is no reason in the Applicant’s personal circumstances to displace this prima facie approach.
Having regard to the phraseology and intent of Direction No. 79, this consideration weighs against the Applicant.
Other considerations
Strength, nature and duration of ties
The Applicant has lived in Australia since he was 19 years of age and is currently 33 years of age. He has worked during that time and has contributed both to his family and the Tribunal assumes to the Australian taxation system. On the evidence, the Applicant seems to have been a good worker.
The Applicant’s children and his wife, from whom he is separated, reside in Australia, as do the Applicant’s parents-in-law with whom he has had some limited association. Although the Applicant and his wife have separated, there is, on the evidence, a satisfactory relationship between husband and wife on account of their three children. This consideration weighs somewhat in the Applicant’s favour.
Impact on victims
In this case, there is evidence that a victim, the Applicant’s wife, will find life difficult in Australia, particularly financially and in looking after their children. In that specific aspect therefore, although beneficial to the Applicant, this consideration is diminished by the Applicant’s commission of the two assault offences against his wife. Ultimately, this consideration has neutral significance.
Extent of impediments if removed
The Applicant is a healthy 33-year-old man who would have, on the evidence, limited difficulty in assimilating into the New Zealand culture. That is not to say that there would some difficulties.
The greatest difficulty for the Applicant would be adjusting in terms of being away from his children.
As to any mental health issues, the report tendered in the sentencing proceedings on 15 July 2019 suggested post-traumatic stress disorder, and a depressive disorder, amongst other things. That report and its contents, the authorship of which is irrelevant to these proceedings, seems to have been accepted at sentence, somewhat uncritically.
The Tribunal finds that the report carries little weight as there seems to be little or no factual foundation for the opinions stated therein. The Tribunal concludes that there is no medical reason which would cause an impediment to the removal of the Applicant from Australia.
Ultimately, this consideration carries limited weight, therefore, in the Applicant’s favour.
There are no other relevant considerations.
CONCLUSION
Having regard to the totality of the evidence and the relevant considerations required under Direction No. 79, the Tribunal is of the view that although there is a limited risk of the Applicant re-offending and that the offences which the Applicant committed were serious offences (as analysed above), nonetheless, the single most important consideration which weighs particularly powerfully is the best interests of the Applicant’s minor children. In this regard, that consideration outweighs all of the considerations to the contrary and the decision not to revoke the mandatory cancellation should be overturned.
The Tribunal sets aside the reviewable decision of the delegate of the Minister and in substitution, the mandatory cancellation of the Applicant’s visa is revoked.
I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC
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Associate
Dated: 2 March 2021
Date of hearing: 22 February 2021 Applicant: Self-represented Solicitors for the Respondent: Ms S Roberts, Mills Oakley Lawyers
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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