Woods and Minister for Home Affairs (Migration)

Woods and Minister for Home Affairs (Migration) [2019] AATA 369 (12 March 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7492
Re:Leon Woods
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Mr A. Maryniak QC, Member
Date:12 March 2019
Place:Melbourne

The Tribunal affirms the decision under review.
...................[sgd].....................................................
Mr A. Maryniak QC, Member
Catchwords
MIGRATION – request for revocation of mandatory cancellation of Applicant’s visa – Applicant has substantial criminal record and does not pass character test – discretion to revoke mandatory cancellation – primary considerations – protection of the Australian community from criminal or other serious conduct – expectations of Australian community – other considerations – strength, nature and duration of ties - impact on victims - decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38]
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
R v Leon Wood [2015] VCC 1904
Saleh and Minister for Immigration and Border Protection (Migration) [2017] AATA 367
Singh and Minister for Immigration and Border Protection [2014] AATA 37
Secondary Materials
Migration Act 1958 (Cth) - Direction 79 (Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA)
REASONS FOR DECISION
Mr A. Maryniak QC, Member
12 March 2019

The Applicant seeks review of a decision of a delegate of the Minister for Home Affairs (the Delegate) made on 12 December 2018 (the Reviewable Decision) under section 501CA(4) of the Migration Act 1958 (Cth) (Act) not to a revoke a visa cancellation decision made under section 501(3A) of the Act (the Original Decision).
The issue in this review is whether the Original Decision to cancel the Applicant's visa should be revoked pursuant to section 501CA(4) of the Act. The Tribunal may revoke the Original Decision if the Tribunal is satisfied:
that the Applicant passes the character test (as defined by section 501 of the Act) or
that there is another reason why the Original Decision should be revoked.
The matter was heard on 4 March 2019. The Applicant gave limited evidence and was cross-examined and questioned by the Tribunal. Essentially, the Applicant did not deny any of his offending. He simply stated that he did not recall each one; and in some instances curiously responded “overruled” to questions put to him in cross-examination. The Applicant called no witnesses. The Respondent lodged two bundles of documents called the ‘G Documents’ and ‘Supplementary G Documents’; and these were admitted into evidence.
A chronology and summary of the Applicant’s criminal history is Annexure A.
The Respondent contended as follows:
(a)the Applicant does not pass the character test as defined by section 501 of the Act because he has a ‘substantial criminal record’ as defined in section 501(7) of the Act;
(b)therefore, the only basis upon which the Tribunal could revoke the Original Decision is if it is satisfied that there is another reason why the Original Decision should be revoked;
(c)in considering whether there is another reason why the Original Decision should be revoked, the Tribunal must apply Direction 79 (Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA) (the Direction) pursuant to section 499 of the Act;
(d)The first and third primary considerations in Part C of the Direction weigh strongly against the Tribunal being satisfied that there is another reason why the Original Decision should be revoked; and
(e)to the extent that any of the relevant other considerations are found to weigh against cancellation (such as the strength, nature and duration of ties), they are significantly outweighed by the first and third primary considerations and the other consideration of impact on victims in this matter.
RELEVANT LEGISLATION
Section 501 of the Act relevantly provides:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of -
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph 7(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
…
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined in subsection (7)); or
…
(7)For the purposes of the character test, a person has a substantial criminal record if:
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or …
(emphasis added)
Section 501CA(4) of the Act provides:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38], North ACJ held that:
The preferable conclusion is that 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…Section 501(6)(a) of the Act relevantly provides that a person does not pass the character test if the person has a substantial criminal record. Relevantly, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more: section 501(7)(c).
Section 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 section 501CA(4) not to revoke a decision to cancel a visa.
THE CHARACTER TEST
As stated above, for the purposes of the character test, a person has a substantial criminal record under section 501(7)(c) of the Act if the person has been sentenced to a term of imprisonment of 12 months or more.
Here, the Applicant was sentenced to a term of 5 years imprisonment on 17 December 2015, the Applicant fails the character test.
THE DISCRETION
In exercising the discretion in section 501CA(4) of the Act, the Tribunal must comply with the Ministerial Direction (section 499(2A) of the Act). The relevant Direction is Direction No. 79.
Paragraph 6.2(1) of the Direction provides the following general guidance:
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.
Paragraph 6.3 of the Direction sets out the following principles relevant to the exercise of the discretion:
(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 of 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 women or children or 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.
Part C of the Direction sets out the relevant considerations in the context of revocation requests.
Pursuant to Part C of the Direction, the Tribunal must, to the extent that they are relevant to this case, take into account three primary considerations and, where relevant, five other considerations.
The three primary considerations in Part C are:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interest of minor children in Australia; and
(c)expectations of the Australian community.
The ‘other considerations’ in Part C include:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed.
In having regard to the considerations, information and evidence from authoritative sources should be given appropriate weight: paragraph 8(2) of the Direction. Primary considerations should generally be given greater weight than the other considerations: paragraph 8(4) of the Direction
PRIMARY CONSIDERATIONS
The protection of the Australian community
Paragraph 13.1 of the Direction 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
Paragraph 13.1.1 of the Direction 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:
(a)the principle that violent and/or sexual crimes are viewed very seriously (paragraph 13.1.1(1)(a));
(b)crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed (13.1.1(1)(b));
(c)the sentence imposed by the courts for a crime or crimes (paragraph 13.1.1.(1)(d));
(d)the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness (paragraph 13.1.1.(1)(e));
(e)the cumulative effect of repeated offending (paragraph 13.1.1.(1)(f)); and
(f)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 (paragraph 13.1.1.(1)(h)).
In addition to the summary in Annexure A. The Applicant's specific offences and court results are otherwise set out in the Applicant's criminal record (G02, P20-23).
Between August 2010 and December 2015, the Applicant appeared before a court on over 20 separate occasions and has been found guilty or convicted of over 19 criminal charges.
The evidence before the Tribunal has established that the Applicant has committed several offences in Australia that involve serious and violent offending, being:
(a)armed robbery;
(b)threat to inflict serious injury;
(c)common law assault;
(d)theft from shop;
(e)contravene community correction order;
(f)intentionally damage property;
(g)recklessly cause injury;
(h)possess prohibited weapon; and
(i)carry controlled weapon without excuse.
Relevantly, in PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162, Senior Member Poljak of the Tribunal observed at [22] (footnotes omitted):
The seriousness of the applicant’s conduct is reinforced by the sentences imposed on him (paragraph 13.1.1(1)(c)). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved. In the present case, the applicant has been sentenced to periods of imprisonment totalling 96 months (eight years)and 30 days as a result of his offences. Also, when considered as a whole, the repeated nature and trend of increasing seriousness of the applicant’s offending, is very serious indeed (paragraph 13.1.1(1)(d) and (e)). The applicant has been convicted of at least 23 offences between 2008 and 2017 and has shown an escalation of offending from threatened violence, to actual violence.
Further, in Saleh and Minister for Immigration and Border Protection (Migration) [2017] AATA 367, Deputy President Kendall of this Tribunal stated at [50] (footnotes omitted):
Dispositions involving incarceration are a last resort in the sentencing hierarchy and this weighs heavily against the revocation of the mandatory cancellation of Mr Saleh’s visa.
The multiple custodial sentences that the Applicant has received reflect the objective seriousness of the Applicant's offences. In particular, the Applicant was sentenced to:
(a)5 years imprisonment with a non-parole period of 3 years on 17 December 2015 for armed robbery, threat to inflict serious injury and common law assault (G02, P20);
(b)2 months imprisonment on 4 December 2014 for theft from a shop and unlawful assault (G02, P20);
(c)4 months imprisonment on 14 March 2014 for breach of community corrections order (G02, P21); and
(d)6 months imprisonment on 4 March 2014 for recklessly causing injury, assault with weapon and possessing a prohibited weapon (G02, P21).
In sentencing the Applicant on 17 December 2015, Judge Punshon of the County Court of Victoria (December 2015 Sentence) made the following comments about the Applicant's most recent offending prior to his imprisonment:
(a)Your [Applicant’s] offending consists of two courses of related offending occurring on 22 April and 2 May 2015. The first armed robbery was on the BWS bottle shop, which is attached to Woolworths at the QV shopping complex. The second was at Dan Murphy's in Prahran.(G02, P26)
(b)Both armed robberies, Charges 1 and 4, were committed at knife point, indeed two knives were used. On each occasion you were wearing a balaclava and a stocking or similar item to cover your face. (G02, P26)
(c)The DVD imagery depicts you leaving with customers scattering at your approach. You must have caused considerable alarm to those who saw you, not to mention the serious conduct that constitutes Charge 3, when you confronted the victim of this charge in Lonsdale Street and told her to move out of the way.(G02, P26)
(d)Charges 2 and 5, threatening to inflict serious injury and common assault respectively, were threatening conduct and words to deter anyone intervening.(G02, P26)
(e)Victim impact statements from the victims of Charges 3 and 4 were tendered. Both of these victims have been affected by your conduct, as would be expected. The victim of Charge 3 feared for her life and has suffered nightmares. The victim of the second armed robbery suffered considerably. She collapsed and dropped to the ground, crying after you left. She worked part-time at the premises and has been unable to continue this work and understandably has suffered high levels of anxiety and found everyday life challenging.(G02, P26)
(f)You have a history of regular offending since 2010, including some matters for violence. Appearances in 2011 and 2012 were principally for shop theft. In May 2013, you were placed on a CCO for six months for attempted theft and in a separate appearance, you were fined for carrying a controlled weapon. In July 2013, you were placed on a CCO for two years in this court for crimes of dishonesty and violence. You were fined in early-2014 for further offending. On 4 March 2014, you were imprisoned for 12 months, with a non-parole period of six months, for crimes including recklessly causing injury and assault with a weapon, as well as shop stealing. The CCO imposed by this court was breached and four months imprisonment was imposed on 14 March 2014. In December 2014, you were sentenced to two months' imprisonment for shop theft and assault. (G02, P27)
Departmental information shows that the Applicant has engaged in 17 reportable incidents during his period in incarceration (G02, P57). The incidents range from inappropriate sexual behaviour with a prisoner in November 2016 and a treating clinician in September 2016, to verbally and physically assaulting staff in July 2016. The Applicant was given an opportunity to respond to this conduct on 1 October 2018 but failed to do so (G02, P57).
In analysing the Applicant’s significant and at times violent criminal history in Australia, the Tribunal places significant weight upon the following:
(a)the repeated violent nature of some of the Applicant’s crimes. Hence, his offending is very serious (paragraph 13.1.1(1)(a));
(b)some of the victims of the Applicant’s crimes have been women (paragraph 13.1.1(1)(b);
(c)the sentences imposed by the Courts for the Applicant’s criminal offences, and in particular the more lengthy sentence of 5 years imprisonment on 17 December 2015 (paragraph 13.1.1(1)(d) of the Direction);
(d)the cumulative effect of the Applicant’s offending (paragraph 13.1.1(1)(f) of the Direction); and
(e)the frequency of the offending (paragraph 13.1.1(1)(e) of the Direction)

In light of the above factors, the Tribunal concludes that the Applicant's conduct is objectively very serious. The nature and seriousness of the Applicant's conduct weighs heavily in favour of the Tribunal exercising its discretion not to revoke the Original Decision.
The risk that the conduct may be repeated
In making the assessment as to whether the risk of harm is unacceptable, the Direction requires the Tribunal to have regard to:
(a)the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
(b)the likelihood of the person engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the person re-offending.
The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct
The harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct of the kind in which he has previously engaged (particularly armed robbery) would be significant physical and psychological injury, as well as substantial financial loss. In light of the Applicant's history of multiple armed robbery offences, such harm is patently serious.
The likelihood of the person engaging in further criminal or other serious conduct
In considering the likelihood of the Applicant engaging in further criminal or other serious conduct, the Tribunal finds on the evidence that the pattern of the Applicant's criminal and other serious conduct shows not just a continuation but an escalation in the nature and seriousness of his conduct. This trend is reflected in the multiple custodial sentences handed down to the Applicant and the increased length of those custodial sentences as time progressed.
Paragraph 13.1.2(2)(b) requires the Tribunal to have regard to the likelihood of the person engaging in further criminal conduct, including evidence of re-offending and rehabilitation.
The Tribunal finds that the risk of the Applicant re-offending is significant. In this regard the Respondent notes that the Applicant has been offending repeatedly since August 2010.
The Applicant claimed to have completed the following courses:
(a)Certificate II in Kitchen Operations;
(b)Food Handlers Certificate; and
(c)Blood Spill Certificate.
However, in light of the fact that the Applicant could not recall doing these courses, there was insufficient evidence before the Tribunal to establish this.
The Applicant has completed two alcohol and drug courses since his imprisonment. Although these courses may be beneficial to the Applicant's rehabilitation, any such rehabilitation which has occurred has not yet been tested in the community. In any event, the Applicant had difficulty remembering much about what he had learnt from those courses.
The December 2015 Sentence also refers to various psychiatric and psychological reports being tendered at the criminal hearing. A report of Dr Lester Walton noted the limited opportunities for drug and alcohol programs in prison and expressed the view that definitive rehabilitation would need to wait until the Applicant was again in the community (G02, P28). Further, a psychiatric report from Dr Shannon Reid dated 13 December 2012 stated that there was no clear evidence the Applicant suffered from a psychotic disorder (G02, P28).
The Tribunal finds that this primary consideration strongly favours a decision not to revoke the Original Decision given:
the nature and seriousness of the Applicant's criminal offending which includes multiple convictions for armed robbery, theft and recklessly causing injury;
the repeated nature of the Applicant's offending;
the lengthy custodial sentence imposed by the Courts in relation to the Applicant's most recent criminal offences;
the fact that a number of the Applicant's criminal offences have caused significant physical and psychological harm and financial loss to members of the Australian community;
that the Applicant will likely cause significant harm to members of the Australian community should he re-offend;
the Applicant's behaviour in prison indicates a disregard for rules and a lack of respect of authority; and
ultimately, there is a real risk that the Applicant will re-offend.
Best interests of minor children in Australia
Paragraph 13.2(1) of the Direction provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of minor children in Australia.
There is no evidence that the Applicant is a father, or has parental responsibilities, of any minor children in Australia. When asked by the Tribunal whether he had any children his response was “not that I know of”.
In circumstances where there is uncertainty about whether an applicant is the father of a minor child in Australia, the Tribunal has not given any weight to this primary consideration.[1]
[1] See Singh and Minister for Immigration and Border Protection [2014] AATA 37.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3(1) of the Direction provides:
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 continue to hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Direction is clear (at paragraph 6.2(1) of the Direction) that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.
The principles to be applied, as set out in paragraph 6.3 of the Direction, 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 (paragraph 6.3(2) of the Direction).
In assessing this consideration, the Respondent contends that the Australian community would consider that the impact of the Applicant's criminal offending was very serious. The Applicant's offending has caused significant and substantial emotional and psychological harm as well as financial harm to members of the Australian community. In this regard, the Respondent refers to paragraph 9 of the December 2015 Sentence referred to in paragraph (e) above.
The Applicant permanently relocated to Australia in 2007 at the age of 21 and has been living in Australia permanently since then. Although the Australian community would expect that a visa holder who has resided in Australia for a similar length of time to the Applicant should be afforded some degree of tolerance, the Australian community's tolerance for the type of criminal offending that the Applicant has been involved in is not boundless. Such tolerance will have been exhausted in this case.
The Applicant has squandered the opportunities Australia has extended to him, and by his conduct has failed to appreciate the privilege that is living in Australia. He has been given opportunities by the legal system to redeem himself; such as good behaviour bonds and community correction orders. The Applicant has failed to take those opportunities to illustrate to the Australian community signs of remorse and/or rehabilitation.
In light of the seriousness of the offences committed by the Applicant, including serious and violent offences, the recidivism he has displayed and his disregard for court orders, the Tribunal finds that the Applicant does not meet the Australian community's expectation that he will obey the laws of the country.
Accordingly, the Tribunal finds that this Primary Consideration strongly favours a decision not to revoke the Original Decision.
OTHER CONSIDERSTIONS
International non-refoulement obligations
In light of the matters discussed above, the Tribunal finds that this consideration is irrelevant.
Strength, nature and duration of ties
The Applicant has permanently resided in Australia since the age of 21.
The Application lost his parents and his brother in tragic circumstances in 2006. The Applicant claims that his uncle, ‘Scotty’, currently resides in Australia. However, the Applicant does not recall his uncle’s surname, has not seen him in years and thinks he lives ‘in the Frankston area’.
The Applicant claims to have contributed positively to the Australian community by:
(a)serving the Australian community in various hospitality roles;
(b)volunteering for various charities;
(c)volunteering as a street cleaner;
(d)volunteering for the Papua New Guinea Mission, City Life Charity in Frankston; and
(e)volunteering at the St Paul’s Charity, Frankston (G02, P43).
However, the Applicant has not filed any character references to support such efforts. In any event, the negative impact the Applicant’s offending has had on the Australian community is not reduced by the limited positive contributions the Applicant may have made.
To the extent that the strength, nature and duration of the Applicant's ties weigh in favour of the Applicant's visa not being cancelled, the Tribunal finds that they are significantly outweighed by the factors weighing against revocation. On balance, the Tribunal finds that this consideration weighs against revocation of the Original Decision.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction 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.
There is no evidence currently available to suggest that the Applicant is involved in the delivery of a major project or of an important service in Australia. Accordingly, the Tribunal finds that this consideration is not relevant.
Impact on victims
Paragraph 14.4(1) of the Direction 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 visa cancellation has been afforded procedural fairness.
The December 2015 Sentence provides that one victim of the Applicant's offending feared for her life and has suffered nightmares (G02, P26). A second victim has been unable to continue work and has suffered high levels of anxiety and found everyday life challenging (G02, P26).
The Tribunal finds that the totality of the Applicant's criminal offences have caused significant physical and psychological harm to members of the Australian community, as well as substantial financial loss. The Tribunal finds that this consideration weighs against revocation of the Original Decision.
Extent of impediments if removed
Paragraph 14.5(1) of the Direction requires the Tribunal to consider, if relevant:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen's age and health;
(b) Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The Applicant claims in his review application that he has no diagnosed medical or psychological condition (G02, P44).
In relation to the extent of impediments that the Applicant may face if he returned to New Zealand, the Applicant conceded that there were none. In any event, this consideration does not weigh in the Applicant's favour having regard to the factors set out in paragraph 14.5 of the Direction:
(a)the Tribunal finds that there are no substantial cultural or language barriers to the Applicant if returned to New Zealand (paragraph 14.5(b)); and
(b)the Tribunal finds that as to the availability of social, medical and economic support, the Applicant would have access to services available to other New Zealand citizens which are of a comparable standard to that available in Australia (paragraph 14.5(c)).
The Tribunal finds that the Applicant would be able to maintain a basic standard of living and address any drug and alcohol problems that may arise in New Zealand. He would not suffer any notable impediments to establishing himself given the support available to New Zealand citizens.
CONCLUSION
Upon the evidence before it, the Tribunal finds that the relevant primary considerations, and the other consideration of impact on victims, all weigh strongly in favour of non-revocation of the Original Decision. No other considerations outweigh them.
The correct or preferable decision is that the Tribunal affirms the decision under review and refuses to revoke the mandatory cancellation.

I certify that the preceding 69 (sixty nine) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak QC, Member.

......................[sgd]......................................
Associate
Dated: 12 March 2019
Date of Hearing:   4 March 2019
Applicant:  Self-Represented
Advocate for the Respondent:  William Staples
Solicitors for the Respondent:  Clayton Utz
ANNEXURE A (1)

Date	Event	Source
9 April 1985	Applicant is born in Auckland, New Zealand.
1 April 2007	Applicant first arrives in Australia (age 21).
19 August 2010	Applicant was charged in the Southport Magistrates Court with wilful damage. No conviction was recorded but the Applicant was ordered to pay a fine of $400 and restitution in the sum of $349.80.	National Police Certificate [G02, P23]
10 November 2010	Applicant was charged in the Southport Magistrates Court with committing public nuisance. No conviction recorded but the Applicant was ordered to pay restitution in the sum of $300 and was placed on a 12 month good behaviour bond.	National Police Certificate [G02, P23]
15 February 2011	Applicant was charged in the Brisbane Magistrates Court with unauthorised dealing with shop goods. No conviction was recorded but was fined $100.	National Police Certificate [G02, P22]
8 June 2011	Applicant was charged and convicted in the Southport Magistrates Court with 2 counts of stealing and ordered to pay restitution in the sums of $210 and $80 and was placed on a 6 month probation period.	National Police Certificate [G02, P22]
31 August 2012	Applicant was charged in the Frankston Magistrates Court with 2 counts of theft from a shop. The charges were proven but dismissed under section 76 of the Sentencing Act 1991 (VIC).	National Police Certificate [G02, P22]
5 December 2012	Applicant was charged and convicted in the Frankston Magistrates Court with theft from a shop and fined $100.	National Police Certificate [G02, P22]
23 May 2013	Applicant was charged and convicted in the Moorabbin Magistrates Court with attempted theft and was given a community correction order for 6 months and unpaid community work for 20 hours.	National Police Certificate [G02, P22]
30 May 2013	Applicant was charged and convicted in the Moorabbin Magistrates Court with carrying a controlled weapon without excuse and fined $500.	National Police Certificate [G02, P22]

ANNEXURE A (2)

Date	Event	Source
17 July 2013	Applicant was charged and convicted in the Melbourne County Court with 7 counts of theft, intentionally damage property, recklessly cause injury, fail to answer bail and 2 counts of common law assault and was given a 2 year community corrections order.	National Police Certificate [G02, P22]
25 September 2013	Applicant was charged and convicted in the Frankston Magistrates Court with shop theft less than $600 (3 charges) and theft from shop (3 charges).	National Police Certificate [G02, P21]
17 December 2013	Applicant was charged in the Frankston Magistrates Court with contravening community correction order.	National Police Certificate [G02, P21]
4 February 2014	Applicant was charged and convicted in the Moorabbin Magistrates Court with theft from shop and fined $100.	National Police Certificate [G02, P21]
4 March 2014	Applicant was convicted in the Moorabbin Magistrates Court with recklessly causing injury, assault with weapon, possessing a prohibited weapon, theft from shop, handle stolen goods and drunk in a public place and was sentenced to an aggregate imprisonment sentence of 6 months and was given two fines of $750 each.	National Police Certificate [G02, P21]
14 March 2014	Applicant was convicted in the Melbourne County Court with 7 counts of theft, intentionally damage property, recklessly cause injury, fail to answer bail and 2 counts of common law assault and breach of bail and was sentenced to an aggregate 4 months imprisonment.	National Police Certificate [G02, P21]
4 December 2014	Applicant was convicted in the Melbourne Magistrates Court with theft from shop and unlawful assault and sentenced to an aggregate 2 months imprisonment.	National Police Certificate [G02, P20]
23 June 2015	Applicant was convicted in the Frankston Magistrates Court with theft from shop and fined $300.	National Police Certificate [G02, P20]
20 July 2015	Applicant was charged in the Frankston Magistrates Court with theft from shop. The offence was proven and dismissed under section 76 of the Sentencing Act 1991 (VIC).	National Police Certificate [G02, P20]

ANNEXURE A (3)

Date	Event	Source
17 December 2015	Applicant was convicted in the Melbourne County Court with armed robbery, threat to inflict serious injury and common law assault and sentenced to 5 years imprisonment.	National Police Certificate [G02, P20]
15 June 2017	Applicant's visa is cancelled under section 501(3A) of the Migration Act (Original Decision).	Mandatory Cancellation Decision [G02, P50]
17 June 2017	Applicant made representations seeking revocation of the Original Decision.	Applicant's Representations [G02, P36]
12 December 2018	The Minister makes a decision under section 501CA of the Migration Act not to revoke the Original Decision under section 501(3A) of the Migration Act (Reviewable Decision).	Letter from the Department to the Applicant dated 6 December 2018 [G02, P6]
18 December 2018	Applicant applies for a review of the Reviewable Decision.	Application for review of decision (individual) [G01, P5]
12 March 2019	The 84th day after the day on which the Applicant was notified of the Reviewable Decision (see section 501(6)(L) of the Migration Act).

[END]

[2019] AATA 369

12 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies