Williams and Minister for Immigration and Border Protection (Migration)

Williams and Minister for Immigration and Border Protection (Migration) [2017] AATA 1538 (21 September 2017)
Division:GENERAL DIVISION
File Number(s): 2017/3892
Re:Dean Williams
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:L M Gallagher, Member

Date:21 September 2017
Place:Perth

The decision under review is affirmed.
...........[sgd]..........................................................
L M Gallagher, Member
CATCHWORDS
IMMIGRATION – Class TY Subclass 444 (temporary) visa – non-revocation of mandatory cancellation of visa – applicant did not pass character test and had served term of imprisonment – visa mandatorily cancelled under subsection 501(3A) Migration Act 1958 (Cth) – whether discretion in subsection 501CA(4) to revoke mandatory visa cancellation should be exercised – Direction No. 65 – primary and other relevant considerations – protection of the Australian community from criminal or other serious conduct – nature and seriousness of the conduct – risk to the Australian community should further offences be committed – best interests of minor children - expectations of the Australian community - other relevant considerations – strength, nature and duration of ties to Australia – extent of impediments if removed from Australia - discretion should not be exercised to revoke visa cancellation - decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) – sections 189, 499(1) and (2A), 500(1), 501(3A), 501CA, 501(6), 501(7)
CASES
Leota and Minister for Immigration and Border Protection [2017] AATA 1365
SECONDARY MATERIALS
Minister for Immigration and Border Protection, Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014 – paragraphs 6.2, 6.3, 7(1), 8(1), 13(2), 13.1(1), 13.1(2), 13.1.1, 13.1.2, 13.3(1), 14(1)(b) and (e), 14.2(1), 14.5
REASONS FOR DECISION
L M Gallagher, Member
21 September 2017
INTRODUCTION

This is an application lodged under subsection 500(1)(ba) of the Migration Act 1958 (Cth) (‘the Migration Act’) for a review of a decision of a delegate for the Minister of Immigration and Border Protection (‘the Minister’) dated 30 June 2016 (G5) not to revoke the mandatory cancellation (by virtue of subsection 501(3A) of the Migration Act) of Mr Williams’ Class TY Subclass 444 (temporary) visa (‘the visa’) pursuant to subsection 501CA(4) of the Migration Act. Relevantly, the delegate found that Mr Williams had been sentenced to a term of imprisonment of 12 months or more and hence had a substantial criminal record as per subsection 501(7)(c) of the Migration Act. Therefore, Mr Williams had not satisfied the delegate that he had passed the “character test” by virtue of subsection 501(6)(a) of the Migration Act.
Having found that Mr Williams had not satisfied the character test, the delegate considered whether there was another reason why the mandatory visa cancellation decision should be revoked, in accordance with subsection 501CA(4)(b)(ii) of the Migration Act and as per the requirements of the Minister for Immigration and Border Protection, Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014 (‘Direction No. 65’). The delegate was not satisfied that there was another reason and decided that Mr Williams’ visa remains cancelled.
BACKGROUND FACTS AND PROCEDURAL HISTORY
Mr Williams is a 50 year old citizen of New Zealand. He most recently arrived in Australia as the holder of the visa on 23 July 2013 (G10, page 63).
On 16 July 1987, Mr Williams was convicted in New Zealand of four counts of “theft as a servant” and received a “supervision by community corrections” order for each count (G8, page 46).
On 26 May 2016, Mr Williams was convicted in the District Court of Western Australia of two charges of “stealing as a servant” and received respective sentences of two years and six months imprisonment (G19, page 113). The offences giving rise to the convictions took place, in relation to the first count, on an unspecifiable number of occasions during a period of approximately seven weeks and in relation to the second count, on the morning of 14 May 2014 (G29, page 133). Mr Williams permitted and facilitated the removal of alcohol from his employer’s warehouse by his co-offender, totalling 1,872 bottles of alcohol, the total value of which was $106,848 (count one) and later 912 bottles of alcohol, the total value of which was $51,246 (count two) (G29, page 133).
On 17 March 2017, Mr Williams was sent a Notice of visa cancellation under subsection 501(3A) of the Migration Act (G3, page 5). That notice invited Mr Williams to make representations about revocation of the cancellation decision.
On 14 June 2017, the Department of Immigration and Border Protection (‘the Department’) sent Mr Williams a letter inviting him to comment on the additional information received by the Department, namely a National Police certificate dated 27 July 2016 and a New Zealand Police Criminal History Report dated 15 July 2016 (G4, page 24).
On 30 June 2017, a delegate of the Minister decided, under subsection 501CA(4) of the Migration Act, not to revoke the visa cancellation decision dated 17 March 2017 (G5, page 26).
As a result of the refusal, Mr Williams became an unlawful non-citizen and was detained pursuant to section 189 of the Migration Act.
On 30 June 2017, Mr Williams applied to this Tribunal for review of the decision not to revoke his visa cancellation (G2, page 3).
ISSUES
The issues for consideration by this Tribunal are:
·Whether Mr Williams passes the “character test”; and
·If not, if there is another reason why the original decision that cancelled Mr Williams’ visa should be revoked, taking into account the relevant considerations in Direction No. 65.
EVIDENCE
This matter was heard in Perth on 6 September 2017. Mr Williams appeared in person by video conference and was self-represented. The Minister was represented by Mr Burgess from Sparke Helmore Lawyers.
The evidence before the Tribunal consisted of:
·The Applicant’s submissions, including attachments (A1);
·Documents provided by the Applicant on 18 August 2017 (A2);
·A 194 page set of G documents (G1 to G32) (R1);
·The Respondent’s Statement of Facts, Issues and Contentions dated 7 August 2017 (R2); and
·Extracts from documents produced by the WA Police under summons (R3).
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
CONSIDERATION
Does Mr Williams pass the character test?
Pursuant to subsection 501CA(4) of the Migration Act, the Minister (and the Tribunal standing in the Minister’s shoes) may revoke a decision made under subsection 501(3A) of the Migration Act to cancel a visa that has been granted to a person 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.
[emphasis added].
As summarised by Senior Member Popple in the decision of Leota and Minister for Immigration and Border Protection [2017] AATA 1365 at [13]:
In Gaspar v Minister for Immigration and Border Protection, the Federal Court explained:
… s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.[1]
In other words, as the Full Court of the Federal Court pointed out in Marzano v Minister for Immigration and Border Protection, “‘may’ in s 501CA(4)(b) means ‘must’”.[2] The Full Court also noted:
… the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds “any” reason why the cancellation decision “could” be revoked”. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation.[3]
[1] (2016) 153 ALD 338 at 345 [38] per North ACJ.
[2] [2017] FCAFC 66 at [31] per Collier J, with whom Logan and Murphy JJ agreed at [59] and [60]. See also at [30]–[32] per Collier J.
[3] [2017] FCAFC 66 at [32] per Collier J, with whom Logan and Murphy JJ agreed at [59] and [60].
In accordance with subsection 501CA(4)(b)(i) of the Migration Act, the Tribunal must first consider whether Mr Williams passes the “character test” as that term is defined in subsection 501(6) of the Migration Act.
Subsection 501(6)(a) of the Migration Act provides that a person does not pass the “character test” if the person has a substantial criminal record (as defined by subsection (7)).
Subsection 501(7)(c) of the Migration Act relevantly provides that for the purposes of the “character test”, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
As noted at paragraph 5 above, on 26 May 2016, Mr Williams was convicted in the District Court of Western Australia and sentenced to two years and six months imprisonment (G19, page 113).
As a consequence of receiving a sentence in excess of 12 months, Mr Williams is deemed to have a substantial criminal record and does not pass the “character test” set out in subsection 501(6)(a) of the Migration Act. Mr Williams did not assert otherwise before this Tribunal.
Accordingly, and on the evidence before it, the Tribunal finds that Mr Williams does not pass the “character test” as that term is defined in the Migration Act.
Is there another reason why the original decision that cancelled Mr Williams’ visa should be revoked?
Having determined that Mr Williams does not pass the “character test” because he has a substantial criminal record having been sentenced to a term of imprisonment of 12 months or more, the Tribunal must now determine whether, in accordance with subsection 501CA(4)(b)(ii) of the Migration Act, there is another reason why the original decision that cancelled Mr Williams’ visa should be revoked.
On 22 December 2014, the Minister, in accordance with its powers under subsection 499(1) of the Migration Act, issued Direction No. 65. Direction No. 65 commenced on 22 December 2014 and is binding on all decision-makers from that date (subsection 499(2A) of the Migration Act). It provides guidance to the Tribunal on the application of the “character test” and the exercise of its discretion. Relevantly, the Preamble to Direction No. 65 (at paragraph 6) states:
6.1 Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501 (3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
(4)The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501 CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
…
Paragraph 6.2 of Direction No. 65 provides general guidance to the Tribunal in relation to the exercise of the direction to revoke a decision to refuse a visa. It provides:
6.2 General Guidance
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501 CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No. 65 sets out a number of principles, including the following:
6.3 Principles
(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.
Subparagraph 7(1) of Direction No. 65 provides guidance as to how this discretion is to be exercised. Relevantly, subparagraph 7(1)(b) of Direction No. 65 states:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
…
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Sub-paragraphs 8(1) and 8(4) of Direction No. 65 respectively state:
8. Taking the relevant considerations into account
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case.
…
(4)Primary considerations should generally be given greater weight than the other considerations.
In relation to Mr Williams’ application, Part C of Direction No. 65 sets out the considerations that are relevant in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa. These considerations are addressed below.
Primary considerations
Subparagraph 13(2) of Direction No. 65 sets out the following three “primary considerations” that must be taken into account in deciding whether to refuse a person’s visa:
(a)Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia; and
(c) Expectations of the Australian Community.
Each of the three “primary considerations” is addressed in relation to Mr Williams below.
(i) Protection of the Australian community from criminal or other serious conduct
In relation to subparagraph 13(2)(a) of Direction No. 65 (i.e. protection of the Australian community), subparagraph 13.1 of Direction No. 65 provides:
13.1     Protection of the Australian community
(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 Australian 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 of 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.
(a)       The nature and seriousness of the non-citizen’s conduct to date
In relation to sub-paragraph 13.1(2)(a) of Direction No. 65 (i.e. the nature and seriousness of the non-citizen’s conduct to date), subparagraph 13.1.1 of Direction No. 65 relevantly provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
…
(c) The sentence imposed by the courts for a crime or crimes;
(d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(e) The cumulative effect of repeated offending;
(f)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
…

In determining whether Mr Williams’ conduct should be viewed as serious, the Tribunal notes the facts of his offence and the sentences imposed by courts for stealing as a servant. The Tribunal notes, in particular, the sentencing remarks of His Honour Justice Derrick dated 26 May 2016 (G9, pages 47 to 61). His Honour’s summary of Mr Williams’ conduct, the explanation for the conduct and considerations with respect to sentencing is as follows:
“…I turn now to make some comments about the issue of the seriousness of your offences. When it comes to determining the seriousness of the offence of stealing as a servant there are a number of factors which are relevant to the assessment of het [sic] seriousness of the conduct.
Those factors include the total amount of the property stolen, the period of the offending, the nature and degree of your breach of trust, the effect on the entity stolen from and the reasons for your offending. I am going to deal with each of those factors in turn.
The total amount of alcohol that you stole was quite obviously significant both in the sense of the number of bottles of alcohol stolen and the value of the alcohol. In committing the offence the subject of count 1, you permitted and facilitated the removal from your employer’s warehouse by your co-offender, Peter Eathorne, of 1,872 bottles of alcohol, the total value of which was $106,848.
In committing the offence the subject of count 2 you permitted and facilitated the removal from your employer’s warehouse of 912 bottles of alcohol, the total value of which was $51, 246. Thus, on any view of the matter, you stole a very large quantity of very valuable property.
Further, only a relatively small proportion of the stolen property was recovered, 306 bottles of alcohol valued at approximately $18,500. The quantity and the value of the property that you stole aggravates the seriousness of your offence.
The State accepts that you did not receive any personal financial or other benefit from your offending. That is not a mitigating factor. Of course, if you had received some benefit from your offending this would have aggravated the seriousness of your conduct. But as I say, that aggravating factor is not present in your case.
As for the period over which you committed your offences, the offence the subject of count 2 was comprised of conduct engaged in by you on the one occasion in the early hours of the morning of 14 May 2014. However, the position so far as your offence the subject of count 1 is concerned is different.
You did not steal the total amount of alcohol the subject of this offence on one occasion, rather the position is that during the approximate seven-week period specified in the charge you on an unspecifiable number of occasions, and in any event on at least two occasions, allowed Eathorne into the warehouse for the purpose of allowing him to take from the warehouse quantities of alcohol which ultimately added up to the total which I’ve already referred to.
In other words, your offence was constituted by you engaging in at least two, and probably more, separate acts over approximately a seven-week period, the State being unable to say precisely how many times you facilitated Eathorne’s removal of the alcohol or precisely what proportion of the total amount of alcohol stolen was taken by Eathorne on each of the occasions that you facilitated this occurring.
…
…the fact that your single offence of stealing was comprised of an unspecifiable number of individual acts of theft carried out over a number of weeks aggravates the seriousness of your conduct.
At the end of the day, the commission by you of both of your offences constituted a reasonably prolonged and a significant course of dishonest conduct. Further, your dishonest course of conduct, Mr Williams, did not come to an end as a result of you desisting in your conduct. To the contrary, it only came to an end when your employment was terminated following the discovery of your offence the subject of count 2.
You were employed by Mainfreight as its operations manager. You therefore held a relatively senior position which carried with it a significant degree of responsibility. As the State points out in their written submissions, you were entrusted with access codes to the building and keys to the front and rear gates, and further allowed to know the location of the key that accessed the room where the closed-circuit television footage was kept locked away.
You were also allowed to access the warehouse on your own. Mainfreight therefore placed a significant degree of trust in you. It was this degree of trust which provided you with the means of committing your offences. To put it another way, you breached the trust that Mainfreight had placed in you in a gross way by committing your offences.
…
That leaves the issue of the reasons for your offending. Your explanation for committing your offences as is set out in the reports is, in substances, as follows. Your co-offender, Eathorne, was an associate of yours.
…
…you were not in a position to assist Eathorne financial [sic]. However, you had heard that Eathorne was involved with antisocial peers and that he’s assaulted people in the past.
You felt intimidated by him. You therefore committed your offences so that Eathorne could sell the stolen alcohol and, by doing so, obtain the money that he required to deal with his financial problems. So that’s the explanation that you have provided. And you heard me express some concern or scepticism even about it with your counsel, but that is the explanation that you’re maintaining and that explanation is accepted by the State, so I’m going to deal with you on the basis of that explanation.
However, what I do say about it, Mr Williams, is that I do not consider that anything in that explanation mitigates to any material extent the seriousness of you conduct. There is nothing to suggest that you or anyone associated with you was under any sort of direct or imminent threat or duress from Eathorne. In these circumstances, the fact that you felt intimidated by Eathorne, assuming that you truly did, simply does not in my view provide a reasonable excuse or justification for you to have engaged in the serious course of criminal conduct that you did.
Quite simply, you should have had the fortitude to make clear to Mr Eathorne that you did not intend to involve yourself in serious criminal conduct for his benefit. So in summary, your conduct in committing the offences for the reasons that I’ve stated was, on any view of the matter, objectively very serious.
…
You have no prior criminal record in this State, however, you do have some relevant, albeit old, prior convictions recorded in New Zealand. On 16 July 1987, so when you were 20 years old, you were convicted in New Zealand of four offences of stealing as a servant. From what I can tell from your records, you were sentenced to some form of community-based disposition for these offences. And your counsel has told me this morning that, really, the offences were committed in not dissimilar circumstances to the present, apparently out of some desire to help somebody.
You did tell the writer of the pre-sentence report that you do not have a history of offending in New Zealand. That’s obviously incorrect and your counsel has provided me with your explanation as to why you told the pre-sentence report writer that. That fact that you do have a prior record, Mr Williams, is not an aggravating factors [sic]. It does not increase the seriousness of the offences of which you have now been convicted.
However, the nature and extent of your record involving as it does offences of a similar nature to those of which you have now been convicted does mean, in my view, that you cannot claim to be entitled to leniency on the basis that you are of good and unblemished character. This is so even when one takes into account the fact that you committed your prior offences many years ago when you were a much younger man. Having said that, I accept that the fact that you have not been convicted of any offences for many years does carry with it some mitigatory value…”
[emphasis added.]
In oral evidence before this Tribunal, Mr Williams said that although he appreciates the visa that is the subject of the present application was granted on 23 July 2013, (G3, page 5 and G10, page 63), he moved to Australia for a work transfer in July 2007.
Mr Williams gave evidence that he was not denying that he had “done a somewhat serious crime.” Mr Williams said that he is “not a career criminal by nature,” that he made a mistake, “done his term in jail” and has carried out the punishment imposed on him by the Court. Mr Williams said that he wants to stay in Australia and is very motivated to contribute to Australian society. Mr Williams said that if he were to “get his visa back” he would still be on parole but as he has “stuck to” all the rules and conditions of his bail, he “doesn’t see any problems with that.”
Mr Burgess directed Mr Williams to his evidence in his statement that (A1, page 3):
“I do not dispute the fact that I facilitated the act in which my co-offender was able to Remove [sic] the alcohol.
I had indicated to my co-offender that this was the “absolute last time on 14 May 2014 and had made a decision to put a stop to the offending and this is the reason my co-offender took a large quantity [of alcohol] from the facility…”
In response to Mr Burgess noting that in fact the second count of theft by a servant that took place on 14 May 2014 was the occasion that facilitated the taking of the smaller quantity of alcohol of the two counts (being 912 bottles totalling $51,246 in value as opposed to the first count, which on Mr Williams’ oral evidence consisted of two occasions over a seven week period and being 1,872 bottles of alcohol totalling $106,848 in value), Mr Williams said that he was unaware of the quantity and value of alcohol that was stolen until the time that the police charged him. Mr Williams said that he had thought the quantities stolen had been smaller and at the times of the offences he had “buried his head in the sand” by going to his office and “shutting the door.” Mr Williams said that on the days the offences were committed he “went in” to work early “but it wasn’t to commit a crime.” Mr Williams said that as he had initially pleaded “not guilty” and changed his plea to “guilty” just prior to the jury being chosen, so he did not get a chance to explain his case.
When asked by Mr Burgess, Mr Williams confirmed that his role in the offences included attending the warehouse facility and turning off the cameras and letting Mr Eathorne into the facility by opening the back sliding door from the inside.
Mr Williams said that at the times of the offences, he was employed by Mainfreight as Operations Manager. Mr Williams said that he had been working in a higher position of Branch Manager between 2007 and 2009 but he had been demoted in 2009 as he was told that he was more suited to an operational role.
When asked by Mr Burgess, Mr Williams said that he did not report the theft after the first occasion (of the first count) or the second occasion (of the first count), nor did he report the further theft on 14 May 2014 (the second count).
When Mr Burgess put to Mr Williams that he only ceased stealing because he was dismissed from work and stopped by the police after he was seen on a neighbouring business’s closed-circuit television, Mr Williams disagreed and referred back to the extract from his statement (A1, refer to paragraph 37 above) that he had told Mr Eathorne on 14 May 2014 that “this was the absolute last time.” Mr Williams said that he had intended to put a stop to it (the stealing) then (on 14 May 2014) as he was intimidated by Mr Eathorne and he was in fear for his family and for himself.
Mr Burgess noted that the sentencing judge did not find that Mr Williams or anyone associated with him had been under any direct threat of harm (refer to paragraph 34 above), Mr Williams said that he had been, but that he had been embarrassed and “regrets it.” Mr Williams said that he had been verbally threatened by Mr Eathorne and that his co-offender had known which school his children attended and could identify his wife’s car. Mr Williams said that he continued to deny his guilt until the first day of his trial as he was in fear of his life and for his family. Mr Williams said that he should have pleaded guilty at an earlier stage and then he “might not be here.”
In response to Mr Burgess’s suggestion that Mr Williams had never put in a statement that he received direct verbal threats from Mr Eathorne and had been in fear for his life because the direct threats had never happened, Mr Williams disagreed and said that it had happened.
In response to Mr Burgess’s question as to why Mr Williams had not disclosed to his employer or to immigration authorities while travelling his prior convictions in New Zealand of “theft as a servant,” Mr Williams said that his employer had never asked for this information during his interview and he had been led to believe that his prior convictions would have been “removed from his record” after ten years, so he thought he would not need to declare them.
As to his evidence in chief that he considered his offending was “somewhat” serious (refer to paragraph 36 above), Mr Williams said he took this view because his crime was not of a sexual nature, nor was it violent or drug-related. Mr Williams said that he is a family man who made a mistake and he believes his offending was “not serious enough” such that he should be removed from Australia.
As to the reference in his statement that he does not dispute that he has committed a crime that “some consider to be of a serious nature” (A1, page 9), Mr Williams said that he has served 15 months of his 30 month sentence and has been granted parole. Mr Williams said he was proud that he personally didn’t gain financially from his employer company’s loss.
When asked by the Tribunal as to whether his belief that his offences were “somewhat” serious because he saw financial consequences as something less serious than the potential impact resulting from sexual, violent or drug-related offences, Mr Williams said he now does think his offences were serious and maybe he was looking at it the wrong way (at the time).
In relation to Mr Williams’ offences, the Minister, in its Statement of Facts, Issues and Contentions dated 7 August 2017 (R2), contended that Mr Williams’ crimes should be viewed as serious crimes for the following reasons:
(a)Mr Williams’ crime attracted a sentence of imprisonment for a total period of two years and six months, noting that in Australia, sentences of imprisonment are the last resort in the sentencing hierarchy and reserved for the most serious crimes.
(b)Mr Williams’ offending facilitated a large scale and calculated theft which involved several weeks of criminal conduct and over $150,000 worth of stolen property, the majority of which was never recovered.
(c)Mr Williams’ crime involved a gross breach of trust (G9, page 50) in circumstances where Mr Williams took advantage of his employer’s trust to facilitate a significant financial and reputational loss to his employer.
(d)Given that Mr Williams had previously been charged with four counts of the same, or a similar offence while living in New Zealand, it cannot be said that Mr Williams is a first time offender.
At hearing, Mr Burgess contended further for the Minister that:
(a)Mr Williams has attempted to downplay his involvement in the offences he committed, referring to them as “somewhat serious” and to others considering them to be serious. This is the case notwithstanding his guilty plea and having been sentenced accordingly. Therefore, Mr Williams has been unable to demonstrate to the Tribunal the remorse he has tried to convey in his written submissions. Further, in this regard, Mr Burgess drew the Tribunal’s attention to the following passage from the sentencing remarks (G29, page 138):
“The writer of the pre-sentence report states that you appear to accept responsibility for your offending, that you did not attempt to minimise in any way your offending behaviour and that you were highly embarrassed and ashamed of your actions. She also indicates that you identified the adverse impact which your actions may have had on your employer’s financial position and reputation. The psychologist expresses a somewhat different view.
She states that you took partial responsibility for your behaviour but externalised the majority of the blame to Eathorne. In your letter to Mainfreight, you state how sorry you are for your foolish actions.
…
I accept that you are sorry for what you did to your employer and that it is a mitigatory factor. I’m not persuaded that you have actually fully accepted responsibility for your behaviour.”
(b)Mr Williams could have stopped the commission of the offences at any time during the relevant period, however, he only stopped when he was caught out.
(c)Mr Williams’ involvement in the offences was not a case of “looking the other way” as Mr Williams had put it. Rather, Mr Williams’ involvement is significant and demonstrative of him not taking full responsibility for his actions (refer to subparagraph 50(a) above) given his actions in attending the business premises early, advising his manager he was going to do so to avoid arousing suspicion, unlocking the gates to the premises, opening an internal door and disconnecting security systems and this is reflected by the sentence that was imposed upon him.
(d)The fact that Mr Williams still does not accept the level of seriousness of the crimes he committed and his level of involvement in them is also relevant to the risk of him re-offending (see paragraphs 54 to 66 below).
(e)As to Mr Williams’ evidence of being under direct threat by Mr Eathorne, Mr Williams has given this evidence only to strengthen his case, the sentencing judge found that there was nothing to suggest Mr Williams had been under direct threat (G29, page 135) and it was not open for the Tribunal to go behind the sentencing judge’s finding.
The Tribunal notes that in considering the nature and seriousness of Mr Williams’ offences of “theft as a servant,” they are offences that are viewed seriously, which is reflected in Direction No. 65 and by the sentencing remarks of his Honour Justice Derrick. As noted by the Minister, sentences involving terms of imprisonment are the last resort in the sentencing hierarchy. Mr Williams’ terms of imprisonment of 30 months (irrespective of the fact he was released on parole after 15 months) reflects the seriousness of Mr Williams’ conduct against the community.
The Tribunal notes the Minister’s emphasis on His Honour Justice Derrick’s remarks that he is not persuaded that Mr Williams has actually fully accepted responsibility for his behaviour. The Tribunal also finds that while Mr Williams is sorry for and ashamed of his offending conduct, given certain aspects of his oral evidence (in particular that his offences were “somewhat” serious, that others may view them as serious and his views on the extent of his involvement in that conduct) the Tribunal is not satisfied that Mr Williams has accepted full responsibility for his actions or that he understands or accepts the seriousness of his offences, including financially and with respect to the breaches of trust implicit within them. The Tribunal also considers this finding to be compounded by the fact that Mr Williams has also committed these offences in New Zealand (although some time ago) and did not disclose this to his employer or to immigration authorities during periods of travel.
Applying the above to the principles in subparagraph 13.1.1 of Direction No. 65, the Tribunal finds that, viewed objectively, Mr Williams crimes are indeed serious and of considerable concern. In the circumstances of the matter, the crimes that Mr Williams committed against his employer, who had placed considerable trust in him, which was ultimately and seriously breached with significant financial and reputational consequences, weighs heavily against revocation of the mandatory cancellation of Mr Williams’ visa. Mr Williams’ conduct during events surrounding the crimes reflects a degree of indifference and his significant involvement and facilitation cannot be excused.
(b) The risk to the Australian community should further offences be committed

Subparagraph 13.1.2 of Direction No. 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether Mr Williams represents an unacceptable risk of harm to the Australian community (i.e. the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct).
Subparagraph 13.1.2 of Direction No. 65 provides:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In considering the risk to the Australian community, 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 (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[emphasis added]
In oral evidence before the Tribunal, Mr Williams said that since his visa has been revoked, he has participated in a number of courses (see A1, pages 15 to 17), which has helped with his rehabilitation within the prison.
When asked by the Tribunal to articulate what he had learned from these courses, Mr Williams said he had learned about emotional intelligence, about stepping back and looking at the “big picture,” looking at “what is next” and “what is going to happen with his actions,” assertive thinking, self-awareness and that “the choices he makes is about him.” Mr Williams said that when you look at his Offender Notes from his time in prison (A1, page 18), there “was not a whole lot there,” that his “respect has helped him get through prison” and that he had a trusted job within the prison.
Mr Williams said that he had “positively got through prison” and that he was “a positive guy.” Mr Williams said that he is the person that “helps the guy next door” and has always been “involved in his kids’ sports.” The Tribunal notes and accepts Mr Williams’ evidence regarding his involvement with his children’s Little Athletics Club in the letter from Debra Hill and Graeme Hill dated 12 December 2015 (G22, page 123).
Mr Williams said that he would “love to be able to prove that he is not a risk to the community” and that he “definitely stuffed up,” but he is “not a threat” and would “do anything to take it back.” Mr Williams said that he came to Australia “to get away from certain people” and that his brothers (who live in New Zealand) had been “taking a different path to him.” Mr Williams said that prior to committing his offences in Australia he had his own business, he owned two investment properties and that he wants to contribute to society again.
In relation to relevant issues which relate to the consideration of this criteria, the Minister contended as follows at paragraph 29 in its Statement of Facts, Issues and Contentions dated 7 August 2017 (R2):
“a. The applicant started offending shortly after arriving in Australia. The willingness to participate in criminal activity so soon after arriving in Australia is evidence of an increased risk to the Australian community of reoffending.
b. The applicant has been in prison or detention since being sentenced and accordingly has not had the opportunity to demonstrate any meaningful rehabilitation outside the supervised environment.
c. The applicant has not undertaken the Think First program which the sentencing judge considered appropriate rehabilitation.
d. Sufficient time has not passed for the applicant to demonstrate that he is rehabilitated and no longer affected by the issues which contributed to his longstanding period of offending.
e. The applicant has provided no evidence of any employment opportunities that he could take up if he were released into the community.”
With regard to the Minister’s contention “c.” at paragraph 60 above, the Tribunal notes Mr Williams’ oral evidence that he had applied for the ‘Think First’ course, as suggested by the sentencing Judge, when in remand prison, an application which had carried over to Wooroloo Prison, where he was told completion of this course was not required. Mr Williams said that, therefore, he proceeded to complete other courses.
At paragraphs 30 and 31 of its Statement of Facts, Issues and Contentions dated 7 August 2017 (R2), the Minister continues:
30. Factors demonstrating the applicant’s risk of re-offending behaviour include:
a. A prior conviction for a similar offence in 1971.
b. The sentencing judge’s comments that “quite simply you should have had the fortitude to make clear to [the co-offender] that you did not intend to involve yourself in serious criminal conduct.” In this regard we note that the offending took place over a period of time of some weeks and that the applicant was not under threat during that period.
c. There is no evidence, beyond the bald assertion of the applicant, before the Tribunal upon which it could be satisfied that if the applicant was placed in a similar situation again (being pressured to commit a criminal offence) he would not succumb to that pressure.
31. Having had regard to the repeated convictions for the same offence and the harm that could befall the Australian community and Australian businesses if the applicant were to reoffend, the Minister contends that any risk of the applicant in this matter reoffending is unacceptable.
At hearing, Mr Burgess made no further contentions in relation to this issue.
In considering the risk of harm to the Australian community, the Tribunal notes Mr Williams’ evidence in paragraphs 56 to 59 above, including that regarding the rehabilitation courses he has completed and what he has learned from them, along with the issues raised by the Minister extracted at paragraphs 60 and 62 above. The Tribunal has also considered the letters of support from his wife, family and friends attesting to his good character (G23, page 124; G24, page 125; G25, page 126; G26, page 127 and G28, page 129) and the Individual Management Plan prepared by the Government of Western Australia Department of Corrective Services (G18, page 107), which records Mr Williams as being a courteous individual who does not require any treatment interventions.
Having considered these matters, the Tribunal considers there is nothing in the evidence and materials before it to objectively demonstrate that if Mr Williams was placed in similar situation again (being pressured to commit a criminal offence) that he would not succumb to that pressure and engage in serious criminal offending once again. Adopting the words of the sentencing judge, the Tribunal is not satisfied that Mr Williams would have the fortitude in future to make clear that he will not involve himself in serious criminal conduct. The Tribunal also has its concerns, notwithstanding Mr Williams’ expression of his embarrassment and shame regarding his offences, about his inability, even at hearing, to appreciate the seriousness of the breach of the trust relationship he once had with his employer and the financial and reputational consequences that flowed from his offending conduct.
Based on the evidence before it, the Tribunal considers that there is a real, albeit low, risk that Mr Williams will reoffend if returned to the community in Australia. Applying the guidance in subparagraph 13.1.2 of Direction No. 65, and given the nature of Mr Williams’ offences, his considerable role in the commission of those offences and the Tribunal’s view that, even now, he fails to appreciate the serious nature of these offences, the Tribunal finds that the risk of Mr Williams reoffending, even though the Tribunal considers it to be low, is unacceptable in all of the circumstances of the case. Overall, Mr Williams’ behaviour presents a risk of reoffending that would be too much for the Australian community to tolerate. This weighs heavily against revocation of the mandatory cancellation of Mr Williams’ visa.
(ii) Best interests of minor children
The second primary consideration listed in subparagraph 13(2) of Direction No. 65 asks the Tribunal to examine the best interests of any minor children in Australia affected by a decision to revoke or not revoke the mandatory cancellation of a visa.
In relation to subparagraph 13(2)(b) of Direction No. 65, subparagraph 13.2 of Direction No. 65 relevantly provides:
(1)Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
…
(4)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);
…
(h)           Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
[emphasis added]
Mr Williams has two children, a son and a daughter. Mr Williams’ son is under the age of 18 and will reach 18 years of age on 13 October 2017 (after the date of this decision). Mr Williams’ son will be referred to in this decision as “Mr Williams’ son” or “his son” (or “her son” in the context of Mrs’ Williams’ evidence) as appropriate. While Mr Williams’ daughter is over 18 years of age, the Tribunal does not consider it necessary that she be named and hence she will be referred to in this decision as “Mr Williams’ daughter” or “his daughter” (or “her daughter” in the context of Mrs’ Williams’ evidence) as appropriate.
In oral evidence, Mr Williams said that his son was still in the high school system and was in his final year of school. Mr Williams said that his son had had “forty three and a half days off school” in semester one of 2017 and that his poor attendance was stress related.
Mr Williams said that while his son is soon going to turn 18 years of age, he is going to be his son’s father for life. Mr Williams said he doesn’t care if his kids are living at home until they are 50 years old. Mr Williams said nothing (in the context of other means of staying in contact if he were to be removed to New Zealand) replaces two people being side by side.
Mr Williams said that his son has lived in Australia for most of his life.
In its Statement of Facts, Issues and Contentions dated 7 August 2017 (R2), the Minister notes Mr Williams’ contention that his son is struggling with his schooling and has been diagnosed with a mental health condition as a result of Mr Williams’ incarceration. The Tribunal notes the letter and related notes from the Government of Western Australia Child and Adolescent Health Services (G20, page 114 to 118) in this regard. The Tribunal also notes the letter written by Mr Williams’ son on 3 December 2016 (G25, page 126) regarding his relationship with his father and his hopes for Mr Williams to remain in Australia.
In relation to the consideration of the best interests of a minor child, the Minister contends that the Tribunal should place less weight on this consideration where (paragraph 34 of its Statement of Facts, Issues and Contentions dated 7 August 2017, R2):
“a. The mother currently fulfils a parenting role for the child.
b. The child turns 18 in November [sic] 2017 and given the applicant has been sentenced to a two and a half year prison term from 16 May 2016 (and is eligible for parole after 15 months), it is likely that by the time the Tribunal’s decision has any practical effect, the child will no longer be a minor child.
c. There is no independent evidence of the effect of any separation from the applicant and there is ability for the applicant to maintain contact with the child in other ways (i.e. telephone/video communication and/or the child travelling to the [sic] New Zealand to visit the father).
At hearing, Mr Burgess made no additional contentions in relation to this issue.
The Tribunal notes that if the original decision is not revoked, Mr Williams will be forced to leave Australia. That would not be in the best interests of Mr Williams’ son to the extent, in practical terms, that he will be separated from his father.
The Tribunal accepts that Mr Williams has a close relationship with his son and the family lived together as a unit prior to his incarceration. The Tribunal notes his son’s evidence (G25, page 126) that he would feel “a bit lost” without him around and notes that Mrs Williams (Mr Williams’ wife and the mother of his two children) has been fulfilling the parental role for Mr Williams’ son in his absence. The Tribunal also notes that Mr Williams’ son has maintained contact with him throughout his incarceration through twice weekly phone calls (G25, page 126) and fortnightly (approximately) visits (G30).
The Tribunal gives regard to the evidence that Mr Williams’ son is suffering from “reactive depression” (G20, page 115). It is unclear from the available evidence whether this is as a result of Mr Williams’ conduct that led to his incarceration, or Mr Williams’ absence from the home, or both, along with any additional factors (related or unrelated).
The Tribunal notes that while Mr Williams’ son has spoken highly of him in his letter (G25, page 126), given the Tribunal’s comments above regarding Mr Williams’ risk of reoffending, the Tribunal does question the example Mr Williams is setting for his son (and his daughter, although not a relevant consideration with respect to his daughter for present purposes).
Overall, the Tribunal finds that this factor weighs in favour of revoking the mandatory cancellation of Mr Williams’ visa, although not as heavily as the first primary consideration (being protection of the Australian community from criminal or other serious conduct) and that the Tribunal finds this to be the case only up until Mr Williams’ son turns 18 years of age on 13 October 2017.
(iii) Expectations of the Australian community
In considering subparagraph 13(2)(c) of Direction No. 65 (the expectations of the Australian community), the Tribunal refers to subparagraph 13.3 of Direction No. 65 for guidance:
(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.
In relation to this issue, the Minister contended as follows in its Statement of Facts, Issues and Contentions 7 August 2017 (R2):
“35. This primary consideration weighs heavily in favour of refusal. The Direction indicates, at paragraph 13.3(1), that 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 be granted a visa. It further notes that decision makers should have due regard to the government’s views in this respect.
36. The Australian community would expect that the applicant, being a temporary visa holder who has committed a serious offence with very serious consequences for Australian business, shortly after arriving in Australia, would not have his visa reinstated.”
At hearing, Mr Burgess made no further contentions in relation to this issue and none were put orally by Mr Williams in this regard.
In the circumstances of the case, the Tribunal finds that the expectations of the Australian community are that a non-citizen who has engaged in a serious crime involving a breach of trust, and had been in Australia for a relatively short period prior to doing so, who has shown, in the Tribunal’s view, no true appreciation of the serious nature of the offence or provided any satisfactory evidence that it will not happen again, should expect to be denied the right to stay in Australia.
Other considerations
Paragraph 14(1) of Direction No. 65 states:
14       Other considerations – revocations requests
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)        International non-refoulement obligations;
b)        Strength, nature and duration of ties;
c)        Impact on Australian business interests;
d)        Impact on victims;
e)        Extent of impediments if removed.
[emphasis added].
It is not in dispute, and the evidence shows, that in relation to Mr Williams, the only “other considerations” that are relevant are those outlined in subparagraphs 14(1)(b) and 14(1)(e) (i.e. strength, nature and duration of ties and extent of impediments if removed).
Strength, nature and duration of ties
With respect to the “strength, nature and duration of ties” consideration, sub-paragraph 14.2 of Direction No. 65 states:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)less weight should be given where there the non-citizen began offending soon after arriving in Australia; and
(ii)More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

Mr Williams arrived in Australia on the visa the subject of the present application on 23 July 2013 (G10, page 63) and was employed by Mainfreight from this time up until his offending conduct was discovered (on a date on or prior to his convictions on 26 May 2016, being less than three years after his arrival). The Tribunal notes subparagraph 14.2(1)(a)(i) of Direction No. 65 at paragraph 87 above which states that less weight should be given where there the non-citizen began offending soon after arriving in Australia.
Mrs Williams gave evidence to the Tribunal that Mr Williams, the children and herself are a very close family, who are “very big on values” and that “family matters” to them. Mrs Williams gave evidence regarding Mr Williams being “hands on” with the children and their sports and around maintaining their home and car. The Tribunal notes that the letters written by Mr Williams’ son, daughter and herself (G24, page 125; G25, page 126 and G26, page 127) are supportive of her evidence in this regard.
Mr Burgess, at hearing, raised the possibility that it could be open under Direction No. 65 for the phrase “soon after arriving in Australia” in subparagraph 14.2(1)(a)(i) to mean soon after a person first arrived in the country to live there (in Mr Williams’ case, in 2007) as opposed to when they were first granted their visa (Mr Williams having been granted numerous visas on each arrival to Australia since 1996, the most recent being the visa dated 23 July 2013, see G10, pages 62 and 63).
On this point, the Tribunal considers that while it is not in dispute that Mr Williams has been, for all intents and purposes, living and working in Australia since 2007, the visa that is the subject of the present application is the one granted on 23 July 2013 and it is open for the Tribunal to take the view that it is the date of grant of that particular visa (23 July 2013) that corresponds with the date of arrival in Australia for the purposes of Direction No. 65, rather than the date that Mr Williams, in practical terms, began residing in Australia. On either view, the Tribunal considers nothing would turn on this in the circumstances of the present application because on either view Mr Williams has not lived in the Australian community for most of his life, or from a very young age (see subparagraph 6.3(5) of Direction No. 65).
The Tribunal accepts Mr Williams’ evidence that he contributed positively to the community, through his employment and contributions through his children’s sports, for the period of time that he was in Australia before he was convicted (whether that period is taken to have commenced in 2007 or in 2013). The Tribunal also accepts that Mr Williams’ family is settled in Australia, that his two children have spent most of their lives here and that his family has a right to remain in Australia indefinitely.
The Tribunal also accepts the evidence that Mr Williams’ daughter is studying in Australia, that she considers it important that she has her father’s support at this time (G26, page 127), that Mr Williams’ family has visited him regularly while he was in prison (G30) as well as the various letters of support from Mr Williams’s friends and family (G22 to G26 and G28).
The Tribunal considers that if Mr Williams is forced to leave Australia, the effect on his family will be significant and negative. Whether this view is balanced against the fact that he began offending within three years of arriving in Australia on the visa that is the subject of the present application (the period of three years being a finding that is open for the Tribunal to make) or after nine years of residing in Australia, this does not impact the Tribunal’s overall finding that on balance, the strength, nature and duration of Mr Williams’ ties to Australia weigh in favour of revocation of the mandatory cancellation of Mr Williams’ visa.
Extent of impediments if removed
With respect to the “extent of impediments if removed” consideration, sub-paragraph 14.5 of Direction No. 65 states:
(1)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 any substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
Mr Williams is currently aged 50 years, so his age will not, in and of itself, be an impediment for him. There is no evidence to suggest Mr Williams has any relevant health issues and he would have no language or cultural barriers if removed. The Minister has contended that (at paragraph 40 of its Statement of Facts, Issues and Contentions dated 7 August 2017, R2) that the New Zealand Government offers comparable social welfare to which Mr Williams may be entitled and the Tribunal finds this to reasonably be the case.
The Tribunal does accept however, that Mr Williams would suffer emotional hardship should he be separated from his family and need to re-establish himself in New Zealand without them. Mr Williams does have some family in New Zealand (his mother and sister, A1 at page 11), although he has chosen to distance himself from his two brothers that reside there. The Tribunal has also taken into account that Mr Williams lived in New Zealand for 40 years prior to residing in Australia.
On balance of these factors, the Tribunal finds that this consideration weighs against the revocation of the mandatory cancellation of Mr Williams’ visa.
CONCLUSION
Having been convicted of an offence carrying with it a sentence of a term of imprisonment of 12 months or more, Mr Williams has a substantial criminal record and does not pass the character test in subsection 501(6) of the Migration Act. This is not in dispute.
In determining whether to exercise its discretion to revoke the mandatory cancellation of Mr Williams’ visa, the Tribunal has attached significant weight to the fact that Mr Williams committed offences which were regarded by the sentencing Judge as objectively very serious and carried with them a term of imprisonment of two and a half years. The Tribunal has also attached weight to the fact that Mr Williams failed to disclose to the Department his prior criminal offending (refer to subparagraph 13.1.1(f) of Direction No. 65).
On the evidence before, the Tribunal finds that Mr Williams should, as per paragraph 6.3 of Direction No. 65, expect to be denied the privilege of staying in Australia.
The Tribunal also finds that there remains an unacceptable risk that Mr Williams may engage in further criminal conduct if he remains in Australia and that the Australian community will, as a consequence, be at risk. In making this assessment the Tribunal has considered the likelihood of further criminal or other serious conduct, taking into account its view that even now, and despite having completed a number of rehabilitation courses while in prison, Mr Williams still fails to appreciate the serious nature of his offences and his considerable role in their commission. In the circumstances, the Tribunal finds that there is an ongoing risk of reoffending, and as such, an unacceptable risk to the Australian community.
The Tribunal considers that the best interests of Mr Williams’ minor son weigh in favour of revocation, given its comments and findings at paragraphs 76 to 80 above, however given the principles of Direction No. 65 this can only be the case until Mr Williams’ son turns 18 years of age.
The Tribunal finds that on balance, the primary considerations addressed in this decision lead to the view that the Australian community would expect that Mr Williams’ visa would be refused. That is, the Tribunal considers that the protection of the Australian community outweighs the best interests of Mr Williams’ son as a primary consideration as well as the other countervailing “other consideration” of the strength, nature and duration of ties.
The Tribunal has also had regard to the fact that Mr Williams would not face any notable impediments if removed from Australia to New Zealand.
Overall, the Tribunal finds that having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No. 65, it is not satisfied that there is another reason why the original decision to cancel the visa should be revoked as required by subsection 501CA(4)(b)(ii) of the Migration Act and the correct and preferable decision is not to revoke the mandatory cancellation of the visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.

I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member

..............[sgd].......................................................
Administrative Assistant - Legal
Dated: 21 September 2017

Date(s) of hearing: 6 September 2017

Applicant: In person

Advocate for the Respondent: Mr A Burgess

Solicitors for the Respondent: Sparke Helmore

[2017] AATA 1538

21 September 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing

Remedies

Date(s) of hearing:	6 September 2017
Applicant:	In person
Advocate for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore