WQRJ and Minister for Home Affairs (Migration)

[2018] AATA 3854

WQRJ and Minister for Home Affairs (Migration) [2018] AATA 3854 (15 October 2018)

Division:GENERAL DIVISION

File Number(s):      2018/4156

Re:WQRJ  

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:15 October 2018

Place:Sydney

The decision under review is affirmed.

......................[sgd]..............................................

Senior Member A Poljak

CATCHWORDS

MIGRATION – mandatory cancellation – character grounds – substantial criminal record – offences involving domestic violence – repeated driving offences – Direction 65 – whether another reason cancellation should be revoked – protection of the Australian community – nature and seriousness of the conduct – the risk conduct may be repeated – best interests of minor children in Australia – expectations of Australian community – decision affirmed 

LEGISLATION

Migration Act 1958 (Cth) ss 499, 500, 501, 501CA

CASES

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Senior Member A Poljak

15 October 2018

1. The applicant, WQRJ, is a citizen of New Zealand (from the Cook Islands) and first arrived in Australia on 9 January 1999, at 10 years of age. He was the holder of a Class TY, Subclass 444 Special Category (Temporary) visa (“visa”).

2. On 3 October 2017, the applicant’s visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on character grounds. The applicant made representations to the Minister of Home Affairs (“Minister”) to have the mandatory cancellation revoked under section 501CA of the Act. On 23 July 2018, a delegate of the Minister found that the discretion under section 501CA(4) of the Act to revoke the cancellation of the applicant’s visa was not enlivened. This is the decision under review in these proceedings.

3. The issue before the Tribunal in these proceedings is whether the decision to cancel the applicant’s visa should be revoked under section 501CA(4) of the Act.

   RELEVANT LEGISLATIVE PROVISIONS

4. Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of sections 501(6) and 501(7).

5. Section 501(6) defines the character test. Relevantly, a person does not pass the character test if the person has a substantial criminal record as defined by section 501(7). Section 501(7)(c) 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.

6. Section 501CA(4) of the Act provides that the Minister may revoke the original decision if the Minister is satisfied that the person passes the character test as defined by section 501; or that there is another reason why the original decision should be revoked. This is a discretionary power.

7. The power of the Tribunal to review the decision to cancel the applicant’s visa is provided by section 500. Under section 499(1) the Minister has given written directions as to the exercise of the power to review the decision. Section 499(2A) provides that these directions must be complied with. The relevant direction is Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA which commenced on 23 December 2014 (“the Direction”).

   CHARACTER TEST

8. The applicant has a substantial criminal record in accordance with section 501(7)(c) of the Act and therefore fails the character test. This is not in dispute between the parties.

   DIRECTION NO. 65

9. Paragraph 7 of the Direction sets out how the discretion is to be exercised. Informed by the principles in paragraph 6.3, I must take into account the considerations in Part C, in order to determine whether to revoke the mandatory cancellation of WQRJ’s visa.

10. Under the heading General Guidance (paragraph 6.2), the Direction provides in part:

    (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.

    …

11. In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion should be approached. These principles are:

    (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 a non-citizen’s visa should be cancelled, or their visa application refused.

12. The Direction at paragraph 8 requires the decision-maker to take into account the primary and other considerations relevant to the individual case. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations.

13. The three primary considerations which the Tribunal must take into account are set out in paragraph 13(2) of the Direction as follows:

    (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.

    PRIMARY CONSIDERATION (A) – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

14. In determining this primary consideration, I note that I must have regard to matters set out in paragraph 13.1, namely:

    (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…

    (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 Applicant's conduct to date

15. The nature and seriousness of the applicant’s conduct are relevant considerations when assessing the risk to the Australian community. Paragraph 13.1.1(1)(a) of the Direction provides that offences involving violence are viewed seriously.

16. The extent of the applicant’s criminal offending is detailed in his National Police Certificate dated 1 December 2017 (“National Police Certificate”). The applicant’s criminal history in Australia is substantial and extends over a period of more than 10 years. His offending commenced at the age of 16. His first offence was for the possession of prohibited drugs. Since that time, the applicant has been found guilty and/or convicted of common assault, common assault (domestic violence), contravention of an apprehended violence order (“AVO”), multiple and repeated charges of driving while disqualified, robbery in company, resisting an officer in the execution of duty and drug possession. The most recent offences are detailed below.

17. On 19 March 2015, the applicant entered a plea of guilty and was convicted of common assault (DV) and contravene prohibition/restriction in AVO (domestic) and was sentenced to 12 months imprisonment, 6 months non-parole for each offence. The applicant successfully lodged a severity appeal and the sentence was varied to a 12 month suspended sentence on entering a good behaviour bond. The circumstances of the offence are detailed in the New South Wales Police Fact Sheet (“the Fact Sheet”). The applicant claims that he does not remember exactly what happened because at the time “he was coming down on meth”. He does however accept that he entered a plea of guilty to the offences and does not otherwise challenge the details as set out in the Fact Sheet.

18. It is noted in the Fact Sheet that the applicant and his partner, Ms L, had been in a relationship for 3 years and that both parties have been involved in ongoing domestic violence issues. In this regard I note that the COPS entries produced by New South Wales Police detail numerous domestic disturbances between the applicant and Ms L. The most significant being on 10 September 2014, where it is alleged that the applicant pushed Ms L and threatened her with a knife. As a result of this incident, Police made an application for an AVO as they held fears that a further domestic incident may occur. The applicant disputes the facts as recorded in the COPS entries and I acknowledge that he was not charged or convicted of an offence.  In any event, an apprehended violence order was issued and commenced on 19 September 2014 and was enforceable until 19 September 2015, with the applicant named as the defendant and the victim, Ms L being named as the person in need of protection.

19. The Fact Sheet details that on 11 January 2015, the applicant and Ms L got into an argument about money. The applicant pushed Ms L to the floor, climbed on top of her and punched her in the face several times. The applicant also scratched and bit her on the right arm. When Ms L contacted the Police, the applicant has driven away from the scene in a motor vehicle despite having a disqualified license.

20. On appeal against the severity of sentence, Judge Conlon SC said in his sentencing remarks on 9 June 2015:

    “[The applicant’s] record is now quite a lengthy one and it does not entitle him to any leniency…

    He, of course, does have to attend to what appears to be anger management issues as far as his behaviour towards his partner is concerned. He must understand now that this is in effect going to be a final opportunity.

    Concerning what the magistrate did in respect of the drive whilst disqualified his record is now such that every time he comes before the Court for a drive whilst disqualified the Courts hands are, in effect, tied. There can be no other penalty than an imposition of a sentence of imprisonment. The same will always be the case whenever there is an assault on his female partner as he has done on this particular occasion.

    However, because of the positive nature of the presentence report and whilst I am satisfied that the Magistrate appropriately came to the view that [a] sentence of imprisonment should follow, I am also satisfied the Court can suspend the execution of those sentences, in effect, to give him a final opportunity to get his life back on track and to not reoffend…” [Emphasis added]

21. On 19 April 2017, the applicant was again caught driving during a disqualification period. The New South Wales Police Fact Sheet notes that at the time the applicant’s disqualification period was in effect from 13 August 2008 ending 26 August 2023. The applicant was convicted on 26 June 2017 and sentenced to 6 months imprisonment and a further 2 year disqualification period. These orders were confirmed on appeal.

22. The seriousness of the applicant’s conduct is reinforced by the sentences imposed on him. In June 2015, Judge Conlon SC afforded the applicant one more opportunity to not reoffend and varied the applicant’s 12 month term of imprisonment to a suspended sentence. As foreshadowed by Judge Conlon SC, when the applicant was again caught driving during a disqualification period in 2017, he was sentenced to a term of 6 months imprisonment. This is a significant sentence for such an offence however the Courts plainly thought it was appropriate given the repeated and persistent nature of the applicant’s offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy and accordingly, any such sentence must be viewed as a reflection of the seriousness of the offence involved.

23. Having regard to the circumstances of the applicant’s criminal behaviour and the compounding nature of his offences over many years, I find that the applicant’s conduct is to be viewed very seriously. Particularly given that a recent offence involved domestic violence and the contravention of an AVO. The significant extent of the applicant’s criminal offending over many years and his repeated disregard for the law is alarming. I find that the nature and seriousness of the applicant’s criminal conduct should be viewed very seriously.

    (b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

24. In assessing whether the applicant represents an unacceptable risk of harm to the Australian community, regard must be had to paragraph 13.1.2 of the Direction. This paragraph provides that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I must have regard to, cumulatively, the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and 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 applicant re-offending.

25. Ms L submits that the applicant has changed and that he has taken steps and put in effort to turn his life around. At hearing, she said that prison and detention has had a big impact on the applicant and that he does not want to jeopardise his family again.

26. In a letter of support dated 6 November 2017, Ms Margaret Nekeare, a Community Leader, President of the Australian-Cook Islands Community Council of New South Wales, states that on meeting the applicant for the first time, she saw a “genuinely regrettable young man”. She notes that the applicant’s violent acts were the effects of drugs and says, “the Justice system tried to help him with lighter sentences and it had no effect until now, and I hope that this experience has really knocked some senses into this young man”. Ms Nekeare notes that the applicant has told of his willingness to commit himself to community work such as White Ribbon Day and participating in community meetings to speak about his experiences.

27. I have considered the letters of support from the applicant’s mother, sister, employer and Pastor Terry Topa.

28. The support the applicant receives from his family, Ms L and the community and his steady ongoing employment could possibly assist him in refraining from re-offending. However, I note that the applicant had family support and employment when he previously offended. It also did little to deter him from engaging in substance and alcohol abuse.

29. When considering the applicant’s risk of reoffending, I am very concerned that the applicant has frequently committed the same type of offence of driving whilst disqualified time and time again, despite warnings from the Court, previous convictions and having his driver’s licence cancelled for a significant period of time. The applicant plainly has no regard for the laws of Australia.

30. The applicant submits that juvenile offences were a result of youth, stupidity and peer pressure. He said that once he turned 18 he stopped socialising with friends who had a negative influence on his life. He contends that the main contributing factor to his more recent offending was his drug use (methamphetamines and cannabis) and alcohol. This has been acknowledged and accepted on numerous occasions by the Courts. The applicant claims that he has adequately addressed his drug and alcohol issues.

31. I acknowledge that at hearing, the applicant was forthcoming about his drug use. Despite this I did not find him to be particularly remorseful or insightful about his criminal offending. He expressed that he was sorry and ashamed about his actions but I was not convinced that he had any insight into the consequences of his actions. In regards to his criminal offending, he struggled to remember the details of any of the offences of which he had been convicted. The current representations made by the applicant in these proceedings are not persuasive as the evidence indicates that the applicant underwent drug and alcohol rehabilitation programs in 2007, and underwent counselling and rehabilitation (detox) in 2015. However, by his own admission, the applicant continued his substance abuse (methamphetamine) up until 2017, and reoffended on multiple occasions since undertaking the rehabilitation programs in 2007.

32. On the available evidence, I am not satisfied that the applicant has adequately addressed his substance abuse issues. Despite claiming that his use of drugs and alcohol has reduced, I’m not convinced that this is sufficient to show that he is rehabilitated. In this regard, I also note that his partner Ms L believed that the applicant had stopped using drugs in 2015. On his evidence, this is plainly not the case.

33. In regards to recidivism, I do not have before me any reports from a psychologist or psychiatrist on the issue. I also do not have any evidence that the applicant has addressed his anger management issues as suggested by Judge Conlon SC in his sentencing remarks. I note that the applicant completed a Traffic Offenders Intervention Program (SAVE program) in May 2017. The assessment indicates that the applicant exceeded the requirements for all 6 modules and achieved the highest rating for every aspect of his participation. However, any impact this program has had on the applicant is largely untested in the community due to his subsequent term of imprisonment and time in immigration detention.  

34. Overall, on the evidence before me, I find that there remains a real risk of the applicant re-offending. I am not convinced that any risk, particularly in regards to criminal conduct involving common assault (domestic violence related) is an acceptable risk. The recurrence of the applicant’s violent behaviour towards Ms L can have potentially catastrophic consequences. As such this primary consideration weighs heavily against a decision to restore the applicant’s visa status.

    PRIMARY CONSIDERATION (B) – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

1. Paragraph 13.2 of the Direction provides that decision-makers must make a determination about whether cancellation is, or is not, in the best interests of minor children in Australia affected by the decision. This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel the visa is expected to be made. 

2. Sub-paragraph 13.2(4) sets out factors which must be considered where relevant. It provides:

   (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, 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 fill a parental role in relation to the child;

   (f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

   (g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

   (h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

3. The applicant identifies a number of cousins, nieces and nephews as minor children in his life. This consideration should be given limited weight as the applicant confirmed that he did not have any parental responsibility for the children and is unlikely to play a positive parental role.

4. The applicant has one son who is 7 years old. The applicant contends that he has a “strong relationship” with his son and says that he plays an active role including taking his son to weekend rugby games. The applicant claims of continued regular contact with his son while in prison, which is supported by the offender visitation records. He claims to be the sole financial provider for Ms L. The applicant’s son suffers from chronic asthma, ADHD and learning difficulties. The applicant claims that he is required to cover his son’s medical bills which are said to include occupational therapy, speech therapy, psychology and paediatric appointments on a regular basis as well as medication. There is however very limited medical evidence available in these proceedings to support the claims surrounding the applicant’s son’s medical needs. There is also very limited evidence to suggest that the applicant’s removal from Australia would prohibit the applicant from financially supporting his son or his de-facto partner. Further, the applicant’s mother and sister have provided evidence that the applicant’s son stays with them on weekends (most) and on some weekdays, indicating that the applicant’s child and partner are not without family support.

5. Ms L gave evidence in these proceedings. In a letter dated 26 October 2017, she states that the applicant was the sole bread winner of the family and that she was the full-time carer of their son. At hearing, Ms L confirmed that their son needs to attend occupational therapy, speech therapy and a psychiatrist however he has not been able to have regular treatment due to financial constraints since the applicant was incarcerated and then detained in immigration detention. She claims that without the applicant’s help she has struggled to shelter, feed and clothe herself and her son in the past. She claims that in November 2017 she was diagnosed with depression and anxiety and in January 2018 her and her son became homeless for about a month. At hearing, Ms L confirmed that she had re-started study in July 2018 for a Certificate in Community Services which she expects to complete at the end of 2018. She said she has the intention of finding work in the area. Ms L said that she has now found a place to rent and her son now attends the local public school where he has friends.

6. Ms L discussed her son’s medical needs and said that he had recently been admitted to hospital for a virus which triggered his asthma. She said that he is far behind in his schoolwork and that since the applicant has been in prison and in immigration detention, her son’s behaviour has gotten worse and that he gets into fights at school. In regard to support from the school, Ms L said that he was on a waiting list for funding and she didn’t know how long it would take. Although, she did note that they had only just recently returned to his current primary school.

7. Ms L gave evidence that when the applicant was home, he supported her when she was sick, helped around the house and helped her with their son. She said that without the applicant no one helps her with day-to-day life and she does it all herself. She said that after the domestic violence incident 2015, she left the applicant and ended their relationship. However after attending counselling together she witnessed great changes in the applicant’s behaviour and said that he was “loving and caring and back to his normal self”. She believes that he has made the effort to change and is committed to her and their son. Ms L said that her son loves his dad and they have a great father and son bond. Ms L described that since the applicant had been absent, her son cries about his dad and doesn’t understand what is going on.

8. There are plainly other people in Australia who can provide support and parental care for the applicant’s son. The applicant’s mother, Mrs WQRJ, has provided evidence in these proceedings. She describes the impact of the applicant’s absence on his son and says that “he is angry, lonely and misses dad”. Mrs WQRJ said that if the applicant is removed from Australia, her grandson will be lost. In regards to care, she confirmed that she has the applicant’s son on weekends and helps during the week when Ms L is busy. She said her husband, son and daughter also help with the care of the applicant’s son when he visits.

9. Whether the applicant will play a positive role in his son’s life is questionable given his extensive criminal history and demonstrated lack of regard for the laws in Australia. The domestic violence and assault charges are also significant. No child should ever be at risk of being exposed to violence.

10. Having carefully considered all of the factors relevant to this primary consideration, I accept that the best interests of the applicant’s son may be served by the cancellation decision being revoked. This would allow for the possibility of face-to-face contact with his father and would allow the applicant to be physically present in his son’s life to provide assistance, financially and otherwise, with his medical needs.

11. This primary consideration weighs in favour of revocation; however, having regard to all of the relevant factors, this consideration is outweighed by the other primary considerations.

    PRIMARY CONSIDERATION (C) – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

12. Paragraph 13.3(1) 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

13. In making the Direction, the Minister has made it clear 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 (at paragraph 13.1(1)). The principles to be applied, as set out in paragraph 6.3, state that the right of a non-citizen to be able to come to or remain in Australia is a privilege conferred in the expectation that he or she is and will be law-abiding.

14. Relevant to this matter, I have had particular regard to clause 6.3(5) of the Direction that states in part, “...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”. The applicant arrived in Australia at the age of ten and has resided continuously in Australia since that date. He started offending at the age of 16 in 2005 and has continued to offend up until 2017.

15. The applicant submits that the Australian community, being fully apprised of the applicant’s “circumstances” would be minded to grant him a final opportunity. Circumstances of which the applicant refers include the fact that the applicant has lived in Australia since he was a child, has a strong connection to the Australian community, has a strong employment history, and has shown remorse and steps towards rehabilitation and the dire consequences for his son and partner should he be deported. This submission has limited force given the fact that the extent of the applicant’s criminal history demonstrates a prolonged disregard for Australian laws and demonstrates a disregard for the impact his conduct has on the Australian community. While I accept that the Australian community may have concern for the applicant’s son and his medical needs, the applicant’s criminal history would be the predominant concern of the Australian community given its nature and character.

16. In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, Mortimer J said at [76]:

    [76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

17. Clearly the applicant has not met the community expectation that as a non-citizen he will obey the laws of this country. The applicant has repeatedly committed the same or similar offences (robbery in company, drive during disqualification period), time and time again, and has committed crimes involving violence. Most recently, in 2015 the applicant was convicted of common assault (domestic violence).

18. Given the “nature and character” of the applicant’s criminal offending, I’m satisfied that the community would now expect that the applicant would be denied the opportunity to remain in Australia. He would no doubt have exhausted the trust and patience of the Australian community who would now expect that it is no longer appropriate for it to bear the cost of the resources expended in criminal justice and corrections involved in responding to the applicant’s offending and as stated above, I am not convinced that the applicant has rehabilitated. While the Australian community has greater tolerance for people who have resided in Australia for a long time and from a young age, given the applicant’s long history of offending and the nature of his offences; the tolerance of the Australian community has surely run out.

    OTHER RELEVANT CONSIDERATIONS SET OUT IN DIRECTION NO. 65

19. Paragraph 14 of the Direction provides for other considerations relevant to deciding whether the cancellation of the applicant’s visa should be revoked including the strength, nature and duration of his ties to Australia, and the extent of impediments if the applicant were removed from Australia.

    Strength, nature and duration of ties to Australia

20. Paragraph 14.2(1) of the Direction sets out two main factors to be considered in assessing the strength, nature and duration of a person’s ties to Australia:

    a)    How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

    i.less weight should be given where the person 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; and

    b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents, and/or persons 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).

21. I accept the applicant has strong family ties to Australia.

22. The applicant’s son resides in Australia full time as does his partner, his mum, dad and siblings. The applicant says that he is close to his parents and siblings and I have no reason to doubt the strength of the relationship. A number were present at the hearing to support the applicant and I accept they will be negatively impacted if the applicant is deported. The applicant will however be able to maintain contact with his Australian based family were he to be removed to either the Cook Islands or New Zealand. The evidence also shows that the applicant’s family owns a house in the Cook Islands and his father travels there every six months to do maintenance work on the house and to ensure the quality of the house for the tenants. As such, if the applicant were removed to the Cook Islands he would be able to spend time with his father when he visits.

23. The applicant’s partner, Ms L, is an Australian citizen and will likely be impacted by the applicant’s departure from Australia, particularly as a result of the emotional impact it will have on her and her son and the potential, immediate (albeit, likely temporary) financial impact it will have while the applicant re-establishes himself in New Zealand or the Cook Islands. Ms L states in a letter dated 26 October 2017, that if the applicant was to be removed from Australia it would “break our heart(s) and destroy our son”. As already stated above, Ms L claims that without the applicant’s help she has struggled to shelter, feed and clothe herself and her son in the past. She claims that in November 2017 she was diagnosed with depression and anxiety and in January 2018 her and her son became homeless for about a month. A hearing, Ms L said that she was taking antidepressants as prescribed by her general practitioner. I note however that there is no medical evidence to support a diagnosis of depression and anxiety nor is there any evidence before me from a qualified medical practitioner detailing treatment, the impact Ms L’s mental health issues have on her daily living and how her depression and anxiety may be exacerbated by the applicant’s departure from Australia.

24. Ms L states that both her and her son are Australian citizens and would not leave the country. She says she would not be able to afford to travel to New Zealand to visit the applicant.

25. I acknowledge the positive contribution the applicant has made to the Australian community. He completed his year 10 certificate and has been consistently employed in the construction industry since 2005. He has been in his current place of employment since 2011. In a letter dated 2 November 2017, Nick Kalthas, director of the applicant’s employer Nitro Steel Fixers (NSW) Pty Ltd, states that the applicant is hard-working, reliable, honest and trustworthy and if released and ready to work, the applicant has a position as a leading hand in the company. He states, “the whole Nitro team would suffer the consequences if [the applicant], a dedicated and enthusiastic employee and friend, were deported. The whole Nitro team would like to support [the applicant] and work with [the applicant]”.

26. While the applicant’s strength, nature and duration of ties to Australia favour revocation, it is significantly outweighed by the relevant primary considerations of the protection of the Australian community and the community’s expectations.

    Extent of impediments if removed

27. I note that the applicant has concerns about returning to New Zealand because he claims that he has no family or social support in New Zealand. He also has the same concerns about returning to the Cook Islands however, he does have some family there.   

28. There is no substantive language or cultural barrier to the applicant returning to New Zealand or the Cook Islands. The applicant speaks Cook Island Maori and English. There is no evidence before me that the applicant is affected by any health conditions affecting his ability to obtain employment. His long employment history and skills in the construction industry put him in good stead to find employment and re-establish himself. In any event, as a New Zealand citizen he would have access to a social welfare and a public health system, comparable to those of Australia, which would be available to him if he were to suffer any financial or medical hardship in New Zealand.

29. I accept that the applicant will face a period of adjustment in New Zealand or the Cook Islands and face certain impediments. However such challenges are not insurmountable.

30. This factor slightly favours revocation of the cancellation decision; however it is significantly outweighed by the primary considerations of the protection of the Australian community and the expectations of the Australian community.

    Impact on Australian Business Interests

31. The applicant places some reliance on this consideration and claims that in his current employment, the applicant is a hard-working and reliable employee, whose absence will affect his colleagues.

32. Paragraph 14.3 of the Direction provides that the consideration of the impact on Australian business interests is generally only to be given weight “where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia”. I do not believe this to be the case here and as such I do not give this consideration any weight.

    CONCLUSION

33. For the reasons outlined above, the principles and the two primary considerations of the protection of the Australian community and the expectations of the Australian community, weigh heavily against revocation of the mandatory cancellation of the applicant’s visa. Those principles and considerations outweigh the considerations in favour of revocation.

34. The decision under review is affirmed.

I certify that the preceding 68 (sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

....................[sgd].......................................

Associate

Dated: 15 October 2018

Date(s) of hearing:	4 October 2018
Solicitors for the Applicant:	Immigration Advice & Rights Centre
Solicitors for the Respondent:	Sparke Helmore Lawyers