XJLR and Minister for Home Affairs (Migration)
[2019] AATA 3406
•11 September 2019
XJLR and Minister for Home Affairs (Migration) [2019] AATA 3406 (11 September 2019)
Division:GENERAL DIVISION
File Number(s): 2019/3682
Re:XJLR
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member M Griffin QC
Date:11 September 2019
Place:Sydney
The decision under review is affirmed.
....................................[sgd]....................................
Senior Member M Griffin QC
CATCHWORDS
MIGRATION – cancellation of visa on character grounds – applicant not of good character – whether the decision the cancel the visa should be revoked – other reasons for revocation – protection of the Australian community – history of offences – firearm, domestic violence and traffic offences – applicant likely to reoffend – revocation in best interests of minor child – expectations of the Australian community – prima facie expectation affected by circumstances of the case – expectation against the applicant due to criminal history and risk of reoffending – other considerations in applicant’s favour – protection of the Australian community paramount – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) sections 499, 500, 501 and 501CA
CASES
DKXY and Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
Robertson and Minister for Home Affairs [2019] AATA 164YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Ministerial Direction No 79 Part C
REASONS FOR DECISION
Senior Member M Griffin QC
11 September 2019
In June 2018, a delegate of the Minister for Home Affairs (Minister) cancelled the Applicant's Class TY Subclass 444 Special Category (Temporary) visa pursuant to section 501(3A) of the Migration Act 1958 (Cth) (the Act).
In June 2019, following the receipt of representations from the Applicant, a delegate of the Minister made the decision under section 501CA(4) of the Act, not to revoke the Original Decision.
BACKGROUND
The Applicant was born in New Zealand in 1976 and moved to Australia in 1992. The Applicant married [former wife] in 1998. Their daughter had been born earlier in that year.
During his time in Australia, the Applicant worked and can be said, therefore, to have made some contribution to Australian society. The Applicant, however, during his time in Australia, committed consistently a variety of offences, the most serious of which, were dealt with in 2015 in the District Court. These offences related to the possession of firearms, the Applicant being sentenced to 45 months in imprisonment. Some offences were committed whilst the Applicant was the subject of a bond or on parole.
Relevantly, in mid-2016, the Applicant’s Class TY subclass 444 Visa was cancelled. Following representations by the Applicant, the decision was reversed in September 2016. The Applicant was advised by letter, inter alia, “this decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you.” The Applicant acknowledged receipt of this letter.
The Applicant’s granddaughter, K, was born in 2017.
Following a conviction in early June 2018, for a violence related incident, the Applicant’s visa was cancelled in mid-June 2018. Again, the Applicant requested revocation in July 2018. However, a week later, the Applicant was once again convicted of domestic violence and property offences. It is relevant to note that the Applicant had been on parole at the time of commission of the offences in June and July.
In June 2019, a decision was made by the delegate of the Minister not to revoke the original decision.
The Applicant does not contest the convictions set out by the Respondent in the Statement of Facts. A relevant edited summary of the offences is set out below:
Date Event/Offence Reference October 1993 At [Children's Court], the Applicant was convicted of attempt steal motor vehicle. The Applicant entered 12 month good behaviour bond.
G2, p 27 November 1993 At [Children's Court], the Applicant was convicted of possession of a prohibited weapon. The Applicant was fined $200. G2, p 27 March 1995 At [Local Court 1], the Applicant was convicted of possession of prohibited drug (cannabis resin). The Applicant was fined $350. G2, p 27 December 1996 At [District Court 1], the Applicant was convicted of break, enter & steal. The Applicant was sentenced to three years supervision by NSW Probation Service and ordered to pay $1,000 in compensation. G2, p 27 January 2005 At [Local Court 2] the Applicant was convicted of never licensed person drive vehicle on road - 1st offence. The Applicant was fined $100. G2, p 27 March 2005 At [District Court 2], the Applicant was convicted of an act of cruelty upon an animal. The Applicant entered 18 month s9 bond. G2, p 27 November 2005 At [Local Court 3], the Applicant convicted of never licensed person drive vehicle on road - 2nd+ offence. The Applicant entered 12 month s10 bond. G2, p 27 February 2006 At [Local Court 2], the Applicant was convicted of never licensed person drive vehicle on road - 2nd+ offence. The Applicant was fined $1,000 and disqualified from driving for 3 years. G2, p 27 December 2009 At [Local Court 1], the Applicant convicted of shoplifting, value less than $2,000. The Applicant entered a 6 month s10 bond. G2, p 27 February 2011 At [Local Court 4], the Applicant was convicted of never licensed person drive vehicle on road-2nd+ offence. The Applicant was fined $400 and disqualified from driving for 3 years. G2, p 27 June 2013 At [Local Court 1], the Applicant was convicted of entering a dwelling with intention to steal. The Applicant was sentenced to a 10 month prison sentence, suspended on entering a s12 bond. G2, p 27
Date Event/Offence Reference June 2015 At the [District Court 2], the Applicant was convicted of
· two counts of not keeping a firearm safely (not a prohibited firearm); and
· possession more than 3 unregistered firearms, one of which was a prohibited pistol.
The Applicant was sentenced to 45 months imprisonment with a non-parole period of 2 years and release subject to supervision.
The Applicant was also convicted of:· three counts of possession of ammunition without holding a licence/permit/authority;
· two counts of possession or use of a prohibited weapon without permit.
The Applicant was sentenced to 10 months imprisonment with a non-parole period of 6 months and release subject to supervision. The sentences were served concurrently.
The Applicant’s s12 bond was also revoked, and the Applicant was required to serve a 10 month prison sentence for entering a dwelling with intention to steal.
G2, pp 26 to 27 May 2018 At [Local Court 4], the Applicant was convicted of possession or use of a prohibited weapon without permit. The Applicant was sentenced to 6 months imprisonment.
G2, p 26 June 2018 At [Local Court 1], the Applicant was convicted of stalk/intimidate with intention of fear of physical harm (DV) and common assault. The Applicant was sentenced to 3 months imprisonment.
The Court imposed an Apprehended Domestic Violence Order (ADVO) to protect the victim, [applicant’s former wife].The Applicant was on parole at the time of these offences.
G2, p 26
G2, p 55
July 2018 At [Local Court 2], the Applicant was convicted of:
· stalk/intimidate with intention of fear of physical harm (domestic); and
· two counts of destroy or damage property (DV).
The Applicant was sentenced to an aggregate sentence of 10 months imprisonment with a non-parole period of 7 months and 15 days.
The Applicant lodged an appeal against the severity of the sentence which was subsequently withdrawn.
The Applicant was on parole at the time of these offences.G2, p 26 ISSUES
The issue in this review is whether the original decision to cancel the Applicant’s Visa should be revoked pursuant to section 501 of the Act. The Tribunal may revoke the original decision if the Tribunal is satisfied:
(a)That the Applicant passes the character test as defined by section 501 of the Act; or
(b)
There is another reason why the original decision should be revoked
(s 501CA(4)(b)).
RELEVANT LEGISLATION AND POLICY
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).
Subsection 501CA(4) provides that:
4The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Subsection 501(6)(a) 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: s 501(7)(c).
Subsection 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 s 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction 79. 20/12/2018). The relevant paragraphs of which are set out below and describe the framework within which the Tribunal’s discretion is to be exercised.
The Preamble of Direction 79 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly include that:
a)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens;
b)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere;
c)a non-citizen who has committed a serious crime, including of a violent nature, and particularly against vulnerable members of the community such as minors, should generally expect to forfeit the privilege of staying in Australia;
d)in some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa;
e)while Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period time, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age; and
f)the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
Part C of Direction 79 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises three "primary considerations" and several specified, but non-exhaustive, "other considerations", which must be taken into account.
Pursuant to Part C of Direction 79, the Tribunal must, to the extent that they are relevant to this case, take into account three primary considerations and other considerations. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations. These principles are of course dependent upon the facts and circumstances of each case.
The three primary considerations are:
(a)protection of the Australian community from criminal or other serious conduct;
(b)the best interests of minor children in Australia;
(c)expectations of the Australian community.
Primary Consideration 1 – Protection of the Australian community
Paragraph 13.1 of Direction 79 provides:
1When 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.
2Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The two limbs of paragraph 13.1(2) that the Tribunal must consider when assessing the protection of the Australian community are set out below.
The nature and seriousness of the conduct
Sub-paragraph 13.1.1 of Direction 79 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes, in summary:
(a)the principle that violent and/or sexual crimes are viewed very seriously;
(b)the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)the principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)the sentence imposed by the courts for a crime or crimes, subject to (b) above;
(e)the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status; and
(i)where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention is serious.
The risk to the Australian community
Paragraph 13.1.2 of Direction 79 states that decision-makers must have regard, cumulatively, to the following:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.
Primary Consideration 2 – Best interests of minor children in Australia affected by the decision
Decision-makers must make a determination in respect of each relevant child under 18 years about whether revocation is in the best interests of that child.
In considering the best interests of the child, the following factors must be considered where relevant:
a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) Whether there are other persons who already fulfil a parental role in relation to the child;
f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Primary Consideration 3 – Expectations of the Australian community
Paragraph 13.3 of Direction 79 provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.
The principles to be applied, as set out in paragraph 6.3 of Direction 79, state that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australia community. It is also the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes.
The length of time a non-citizen has been making a positive contribution to the Australian community and the consequences of the visa refusal or cancellation for minor children and other immediate family members in Australia are relevant considerations.
Other Considerations
The Tribunal must also take into account other considerations insofar as they are relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties to Australia;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
International non-refoulement obligations
The considerations at para 14.1 of Direction 79 include (but are not limited to):
a) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations;
b) The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa;
c) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled);
d) Where a non-citizen makes claims which may give rise to international nonrefoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked;
e) Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated.
Strength, nature and duration of ties
The considerations at para 14.2 include:
(a)how long the non-citizen has resided in Australia, including the age of arrival in Australia, the period of offending and positive contributions to the Australian community;
(b)the strength, duration and nature of any family or social links with Australian citizens, including the effect of non-revocation on the non-citizen’s immediate family.
Impact on Australian business interests
Direction 79 notes an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia (para 14.3(1)).
Impact on victims
Paragraph 14.4 of Direction 79 provides:
'Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.'
Extent of impediments if removed
The extent of impediments if removed requires consideration of the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: age and health; whether there are substantial language or cultural barriers; and the availability of any social, medical and/or economic support.
DISCUSSION
Character Test
It is clear according to the Act that because the Applicant has a ‘substantial criminal record’ (s 501(6)(a)) he does not pass the character test. The Applicant’s accepts this.
The question for the Tribunal is whether it is satisfied that there exists another reason for revoking the cancellation decision.
The Applicant at the hearing was unrepresented but in accordance with Tribunal rules, produced a statement of facts, issues and contentions. It was difficult to draw the Applicant out in the course of his giving evidence as he was somewhat non-communicative and reticent. He consistently expressed both remorse for his past conduct, sorrow that he had failed his family and friends, and expressed a fervent desire to remain in Australia. The written statement provided a tolerably clear argument for his case, based as it was, upon assertions of the force of Consideration 2, his health difficulties and generally the difficulty for he and his family should he be removed from Australia and the fact that he had completed helpful courses in the past in relation to offending, including drug and anger management counselling. He referred to a judge’s sentencing remarks from which he argued that that judge saw the prospect of both rehabilitation and a reduced risk of future offending (the full sentencing remarks form part of the G Documents).
Protection of the Australian community (past conduct and future risk)
It is sufficient to say that the Applicant’s offending history is lengthy, worryingly varied and contains offences which are properly described as violent. It cannot be said that the Applicant’s offences diminished in seriousness over time. They displayed a lack of respect and concern for Australian laws and Australian citizens. The Applicant was given, on numerous occasions, the assistance of non-custodial sentences. Neither these sentences, nor those imposed upon him which were custodial, appear to have deterred him from committing further offences, and on occasions, further serious offences.
There were periods for some years when the Applicant is not recorded as having committed any criminal offences. The Tribunal takes this into account. On other occasions, in June 2015 and July 2018, the Applicant committed the offences referred to on those sentencing dates whilst on a s12 bond and on parole, respectively. The Applicant also committed a number of driving offences, further demonstrating a lack of respect for Court Orders. The violent offences were committed against his wife who gave evidence in the proceedings. These were offences both of violence and it might be regarded, in the domestic context, against a vulnerable person.
Of considerable concern are the convictions in June 2015. Resort to the complete record pp. 26 – 27 of the G Documents discloses a serious array of extremely dangerous weapons, including a Glock pistol. No explanation was offered to the sentencing Judge concerning the reason or reasons for possession. In evidence, the Tribunal asked the Applicant about his possession to which he responded in reference to some of the weapons, that they were for the purpose of shooting kangaroos and (as to the Glock) for the purpose of shooting possums. Merely stating the Applicant’s answers in this regard enliven an even greater concern as to the real reason for the possession for these weapons. These offences, alone, in the Tribunal’s view, with the risible explanation given are sufficient to cause serious concerns about the potential for danger of risks to the safety of other Australians.
The domestic violence offences were committed whilst on parole. The description by the wife given to the police, of being punched and kicked, is at the high end of domestic violence. Nothing in all of the evidence, including the Applicant’s having undertaken various courses, leads to a conclusion other than, there is a real likelihood of him committing future criminal offences, including offences of violence. The Tribunal does not accept his assertions nor those of his daughter, Ms T, the Applicant’s mother, Ms B, or the others who suggest that, “[XJLR] will turn his life around”.
Review of the Applicant’s criminal history, together with a proper evaluation of the chances and opportunities which he has been given at sentencing, suggest that the Applicant is a recidivist offender. Furthermore, it is patently clear that he is incapable of abstaining from criminal conduct. The Tribunal concludes that it is therefore highly probable that the Applicant will offend in the future and the real likelihood is that some offending will be serious, violent and likely to affect other citizens.
The Tribunal accepts the submissions of the Respondent that the Applicant’s offending is both serious and that the Applicant is likely to be a risk of offending in the future. The Tribunal considers that this Primary Consideration weighs heavily against the Applicant.
Best interests of minor children in Australia
The Applicant has a granddaughter, K, in Australia, born in 2017.
The Tribunal accepts that the Applicant has a genuine interest in the child and its welfare. There is no other male figure likely to be in the child’s life in the foreseeable future. It is, without doubt, that the Applicant remaining in Australia is in the child’s best interests, even although the child has had little chance because of the young age, to have any meaningful contact or the opportunity to bond with the grandfather. It is possible, although the Tribunal has found that the Applicant is at risk of further offences, to divorce that behaviour from having a meaningful relationship with the child. After all, the Tribunal accepts that the Applicant has a perfectly satisfactory relationship with his daughter, and it would be possible for the daughter to help promote a full and satisfactory relationship between K and the Applicant. It cannot be said that a relationship conducted merely by telephone or even by Skype or some such technology is, on any view, totally satisfactory. There is no doubt that, in the Tribunal’s mind, this consideration weighs strongly in favour of the Applicant.
Expectations of the Australian Community
This consideration has been the subject of recent debate in the full court of the Federal Court in an appeal of the decision of Perry J in FYBR [2019] FCA 500. At the time of writing, the decision has not been given.
I reject the Respondent’s submissions in relation to the acceptance of comments by Justice Mortimer in YNQY, whose comments were merely obiter. I propose to take the approach I discussed at some length in Robertson [2019] AATA 164 which preceded a similar decision of Griffiths J in DKXY [2019] FCA 495.
This consideration expresses a prima face expectation which may be ameliorated or strengthened by the particular circumstances of the particular case. Direction 79 requires an evaluation, not merely a wholesale attribution, of the Minister’s perception of community expectations. This consideration requires at least an evaluation of all relevant factors, therefore, to determine whether the stated prima face position should be adjusted. Although the discussion of this consideration appears at this point in the judgement, the consideration itself must be the subject of all relevant factors pertaining to its consideration, those factors which have already been referred to and have been considered, and will be subsequently discussed under the relevant headings below. It is sufficient to say that there are a number of matters which heavily weigh against the Applicant because of his past behaviour and likely future conduct. This is so, taking into account all those matters discussed above in Consideration 2 and later, which are in his favour.
Having regard to the phraseology of Direction 79, it is impossible to accept other than this consideration, because of the Applicant’s background, criminal history and likelihood of committing further offences, weighs against the Applicant.
Other considerations
Strength, nature and duration of ties
The Applicant has lived in Australia since he was 16 years of age, that is, since 1992. He commenced offending in October 1993. The criminal history, set out in the table above, demonstrates a lengthy criminal history which, however, could not properly be described as continuous offending. The Applicant has worked since his time in Australia and can therefore be said to have made some positive contributions to Australian society. He has not worked since 2015 because of ill-health although he has contributed to community through Church activities and cultural groups. It is clear on the evidence that the Applicant has very strong family ties in Australia with both close and extended family. His mother, daughter and Ms T, to whom he was something of a mentor and counsellor, gave oral evidence in the proceedings. It is apparent from their evidence alone that they would be devastated should he be removed from Australia. The Tribunal accepts this and further the Applicant himself would be likewise, devastated. The Applicant has been offered the assistance of living with his mother in Western Australia. Overall, this consideration clearly weighs in the Applicant’s favour.
Impact on victims
A relevant victim in this matter, the Applicant’s former wife, provided a statement and gave oral evidence. She has a relevant relationship with the Applicant’s daughter and granddaughter. She said in her statement that she did not “hold any ill-will towards (the Applicant). He is still a very big part of my daughter and granddaughter’s life and it would devastate them both dramatically if he is removed …” The Tribunal took this statement, amongst other evidence, into account in relation to Consideration 2. Furthermore, in conformity with her oral evidence the Applicant’s former wife, although a victim, described her present feelings toward the Applicant in terms of bearing him no ill-will. On the whole of her evidence, the Tribunal infers that she, for the sake of her daughter and granddaughter, prefer the Applicant to remain in Australia. There were effectively no other issues she raised as a victim although the Applicant is presently the subject of a domestic violence order in her favour. Overall, this consideration bears some weight in the Applicant’s favour.
Extent of impediments if removed
The Applicant, who is 42 years of age, has realistically no close relatives in New Zealand. There do not appear to be any substantial language or cultural barriers. There was no evidence produced by the Respondent as to the social security system or medical/economic support available to him in New Zealand of which he is a citizen. The Applicant is 42 years of age and has spent the entirety of his adult life in Australia. The Tribunal accepts that there would be an adverse impact should the Applicant be removed from Australia. Specifically, the Applicant has in the past, suffered from depression and has been treated for cancer which although presently is in remission, it looms large in his everyday life with the prospect of its return. This, the Applicant has said in evidence, is partly responsible, playing a part in his offending. To return him to New Zealand would mean a return to the country where he suffered abuse as a child. Although it can be accepted that New Zealand would provide some form of health, social, economic assistance, there is no doubt that because of the Applicant’s treatment for illness in the past in Australia, he would be far more comfortable psychologically and emotionally remaining in Australia to continue professional connection with those who have treated him in the past. Overall, this consideration weighs in the Applicant’s favour.
CONCLUSION
There are a number of considerations discussed above, not least of which, is Consideration 2, which together weigh strongly in the Applicant’s favour. In this case, however, the Tribunal concludes that Consideration 1, the protection of the Australian community and in particularly not only the seriousness of past offences but the prospect of future offending and therefore the risk to the Australian community so strongly weigh in favour of revocation of the Applicant’s visa, that in the event, the Tribunal concludes, that the original decision should be affirmed.
The decision under review is affirmed.
I certify that the preceding 54 (fifty -four) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC
....................................[sgd]....................................
Associate
Dated: 11 September 2019
Date(s) of hearing: 2 September 2019 Date final submissions received: 23 August 2019 Applicant: In person Solicitors for the Respondent: Clayton Utz
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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