ZGWQ and Minister for Home Affairs (Migration) - [2019] AATA 264

ZGWQ and Minister for Home Affairs (Migration) [2019] AATA 264 (1 March 2019)
Division:GENERAL DIVISION
File Number: 2018/7420
Re:ZGWQ
APPLICANT

Minister for Home AffairsAnd
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:1 March 2019
Place:Sydney

The decision under review is affirmed.
.................................[sgd].......................................
Dr L Bygrave, Member
CATCHWORDS
MIGRATION – mandatory cancellation of visa – failure to pass character test – criminal record – whether the discretion to revoke the cancellation should be exercised – Direction No. 79 – primary considerations – protection of the Australian community from criminal or other serious conduct – nature and seriousness of conduct – risk to the Australian community – best interests of minor children – expectations of the Australian community – other considerations – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 499, 500, 501, 501CA
CASES
Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Leau and Minister for Immigration and Border Protection (Migration) [2017] AATA 918
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Dr L Bygrave, Member
1 March 2019

The applicant, ZGWQ, is a citizen of New Zealand. He first arrived in Australia in 1990 when he was two years old. He has held a class TY (subclass 444) special category visa (visa) from 2 May 2006.
On 25 May 2018, the Department of Immigration and Border Protection (the Department) issued the applicant with a notice advising that his visa had been cancelled under section 501(3A) of the Migration Act 1958 (Cth) (the Act). This decision was made on the basis that the applicant did not pass the character test because he had been sentenced to a term of imprisonment of 12 months or more and therefore had a “substantial criminal record” as defined in section 501(7) of the Act.
On 26 June 2018, the applicant submitted a request for revocation of the mandatory visa cancellation decision pursuant to section 501CA of the Act.
On 7 December 2018, a delegate of the Minister for Home Affairs (the Minister) decided not to revoke the visa cancellation decision and, on 12 December 2018, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of this decision.
The matter was heard in Sydney on 20 February 2019. The applicant did not have legal representation. He attended the hearing in person and gave oral evidence; he was supported by his mother, father and older brother.
RELEVANT LEGISLATION AND POLICY
The power to revoke a visa cancellation
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 the person does not pass the character test because of the operation of sections 501(6) and 501(7).
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) of the Act 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.
Pursuant to section 501CA(4) of the Act, the Minister may revoke the original cancellation decision if the Minister is satisfied that the person passes the character test; or there is another reason why the original decision should be revoked. This is a discretionary power.
The applicant does not pass the character test in section 501(6) of the Act because his criminal record, which includes a sentence of 13 months imprisonment, meets the statutory definition of a “substantial criminal record” in section 501(7) of the Act. I must therefore consider whether there is another reason to revoke the original cancellation decision.
The power of the Tribunal to review the decision to cancel the applicant’s visa is provided by section 500 of the Act. Under section 499(1), the Minister has given written directions as to the exercise of the power to review the decision. Section 499(2A) of the Act provides that these directions must be complied with.
On 28 February 2019, eight days after the date of the Tribunal hearing, the Minister revoked Direction No. 65 and replaced it with Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction No. 79). As this decision has been made on or after 28 February 2019, I must apply the provisions in Direction No. 79: see paragraphs 2 and 3, Direction No. 79.
The principal difference between Direction No. 65 and Direction No. 79 is an amendment that requires decision-makers to view violent crimes, particularly against women or children, very seriously regardless of the sentence imposed by the Courts. Prior to the hearing on 20 February 2019, submissions filed by the applicant and respondent addressed the considerations in Ministerial Direction No. 65. In view of the imminent commencement of Ministerial Direction No. 79, both parties were provided the opportunity to file further written submissions after the hearing.
Direction No. 79
Paragraph 7 of Direction No. 79 sets out how the discretion is to be exercised. It states:
Informed by the principles in paragraph 6.3 above, a decision-maker:
…must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Under the heading of “General Guidance” at paragraph 6.2, Direction No. 79 states in part:
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 [in paragraph 6.3] 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.
In paragraph 6.3, the Minister sets out the principles that provide a framework to approach the task of deciding whether to revoke the decision to cancel a visa. The 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 women or children or vulnerable members of the community such as 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.
Paragraph 8 of Direction No. 79 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. In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Part C of Direction No. 79 sets out the primary considerations the Tribunal must take into account in deciding whether to revoke the cancellation of the applicant’s visa 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.
Other considerations in Part C identified by the applicant and respondent as relevant to this matter are:
(a)the strength, nature and duration of ties to Australia;
(b)impact on Australian business interests;
(c)impact on victims; and
(d)the extent of impediments to the applicant if he is removed from Australia.
EVIDENCE
The following facts are based on evidence before the Tribunal, which comprises:
·written statements and oral evidence from the applicant;
·written statements by family members and the applicant’s former employer; and
·records and documents relating to his criminal offences.
The applicant’s family identify as Tongan nationality. The applicant was born in New Zealand in 1988 and subsequently arrived in Australia in 1990 with his parents and older brother. He last visited New Zealand in 2006 but told the Tribunal that he has no known family members in New Zealand.
The applicant is the middle child in his family; he has a brother who is three years older and a brother seven years younger. His older brother is employed full-time and has four children under the age of six years, and his younger brother resides with his parents. His younger brother has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and a mental health condition and is cared for by his mother. The applicant’s mother, father and younger brother have health problems and do not work; they receive financial support from social security payments. During the periods he has not been either incarcerated or in detention, the applicant has resided with his parents and younger brother in the family home.
The applicant attended school until half way through year 12. After school, he relied on social security payments until the period July to December 2017, when he was employed full-time as a factory worker. He is a member of the Tongan Community Youth Church.
Criminal record
The applicant has a substantial criminal record dating from July 2006 to May 2018. The applicant’s criminal record, detailed in an Australian Criminal Intelligence Commission report dated 18 September 2018, shows he has been charged with and found guilty of 35 separate offences.
The applicant’s offences that resulted in the Courts imposing sentences of imprisonment are set out below:
·Court date – 7 June 2012. Offence: “contravene prohibition/restriction in AVO (domestic)”. Sentence: imprisonment nine months suspended on enter s 12 bond; nine months supervised NSW probation service drug and alcohol program as directed. Offence: “common assault (DV) – t2”. Sentence: imprisonment six months suspended on enter s 12 bond; six months supervised NSW probation service drug and alcohol program as directed.
·Court date – 25 June 2014. Offence: “contravene prohibition/restriction in AVO (domestic)”. Sentence: imprisonment 12 months; non-parole period with conditions three months, release subject to supervision. Offence: “common assault (DV) – t2”. Sentence: imprisonment 12 months; non-parole period with conditions three months, release subject to supervision. Offence: “wield knife in a public place”. Sentence: imprisonment three months.
·Court date – 27 March 2015. Offence: “contravene prohibition/restriction in AVO (domestic)”. Sentence: imprisonment nine months; non-parole period with conditions six months, release subject to supervision. Offence: “destroy or damage property <= $2000 (DV) – t2”. Sentence: imprisonment six months.
·Court date – 15 August 2017. Offence: “stalk/intimidate intend fear physical etc harm (personal) – t2”. Sentence: imprisonment 13 months suspended on enter s 12 bond; 13 months supervised NSW probation service for counselling, educational development or drug and alcohol rehabilitation.
·Court date – 15 March 2018. Offence: “affray – t1”. Sentence: imprisonment nine months; non-parole period with conditions five months, subject to supervision on parole. Offence: “stalk/intimidate intend fear physical etc harm (personal) – t2”. Sentence: (call up) imprisonment 13 months; non-parole period with conditions eight months subject to supervision on parole, severity appeal lodged. Offence: “contravene prohibition/restriction in AVO (domestic)”. Sentence: imprisonment two months.
·Court date – 1 May 2018. Offence: “affray – t1”. Sentence: imprisonment nine months; non-parole period with conditions five months, subject to supervision on parole. Offence: “stalk/intimidate intend fear physical etc harm (personal) – t2”. Sentence: imprisonment 13 months; non-parole period with conditions five months, subject to supervision on parole.[1]
[1] Exhibit G-G5, pp 27-30.
The applicant’s Conviction, Sentences and Appeals report by the NSW Department of Corrective Services records the applicant has spent more than 15 months in prison during the period from March 2014 to March 2018.[2] In addition, the applicant spent 12 months in detention from July 2015 to July 2016 following the cancellation of his visa on 27 July 2015 under section 501CA(4) of the Act; this cancellation was revoked on 22 July 2016.[3]
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL AND OTHER SERIOUS CONDUCT
[2] Exhibit TB-TB3, pp 38-39.
[3] Exhibit G-G21, pp 100-101.
Paragraph 13.1 of Direction No. 79 outlines the Government’s commitment to protecting the Australian community from harm by non-citizens and requires that I consider:
(a)the nature and seriousness of the applicant’s conduct to date; and
(b)the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
The nature and seriousness of the applicant’s conduct to date
The applicant’s criminal record shows he appeared before the Courts (adult and children’s) on 15 occasions from July 2006 to May 2018. His record demonstrates a pattern of serious offending from the age of 17 years; he has repeated convictions of “common assault (domestic violence)” and “contravene apprehended violence order (domestic)”. He also has convictions for the violent offences of “wield knife in a public place”, “affray” and “stalk/intimidate intend fear physical etc harm”.
Police reports for the applicant’s convictions describe his involvement in altercations with people when intoxicated. At the Tribunal hearing, the applicant was shown police fact sheets that described incidents of violent, frightening and intimidating behaviour by the applicant towards family members, as well as strangers, after he had consumed alcohol.
I concur with previous decisions by the Tribunal that view domestic violence as an extremely serious offence that has a devastating impact on the Australian community, and is unacceptable in any circumstance.[4]
[4] Ahori and Minister for Immigration and Border Protection [2017] AATA 601 at [53]; Leau and Minister for Immigration and Border Protection (Migration) [2017] AATA 918 at [48].
The seriousness of the applicant’s criminal behaviour is indicated by the sentences, which include periods of imprisonment, imposed by the Courts. I note the sentences show a willingness by the Courts to acknowledge the applicant’s offending behaviour is related to his consumption of alcohol and provide him with opportunities including good behaviour bonds and access to counselling and drug and alcohol rehabilitation programs.
The sentencing remarks of the Courts provide insight into the repeated warnings issued to the applicant in relation to his offending behaviour.
In the Waverley Local Court on 27 March 2015, Magistrate Farnan noted the applicant’s offences of breaching an apprehended violence order (domestic violence) and destroy or damage property, and described his history of offending as follows:
…these are offences which if you had not had such a terrible record, would not be matters that would have resulted in you going to gaol. But when you committed these two offences, both of them committed at your family home, you were on parole for offences that were also offences of domestic violence, and you were also on an apprehended violence order which prohibited you from being at that place when you were intoxicated…
This is a completely unacceptable situation and is one that the courts are just going to continue to give you heavier sentences for if you do not do something about it. Clearly when you have been drinking, you are a danger to the people around you and you are incapable of complying with court orders.
You are the only one who can make the decision to stay sober and if you do not make it very soon, you are going to have a great deal of difficulty moving into the rest of your adult life other than in prison. And that risk to other members of the community and in particular your family, is one that hopefully you will recognise is not worth the risk of you drinking alcohol.
…it is apparent from looking at your record, that the courts have been trying for many years since you’re probably only just over 18, to get you to go to rehab to get you to engage in programs that can help you and time after time, unfortunately that has not been successful…[5]
[5] Exhibit G-G8, p 38.
In relation to the offences of stalk/intimidate intend fear physical harm and drink alcohol on bus or in public place, Magistrate Walsh in the Sutherland Local Court on 15 August 2017 provided a clear warning to the applicant in relation to his offending behaviour:
This is abhorrent behaviour. It does not matter whether you are drunk or not. A lot of people tried to stop you from doing what you were doing and you just kept going…
This is a real crossroads for you. You can go out of that door or if you breach what I’m going to do now, by breaching your promise to me that you will be of good behaviour, I guarantee you will go out that door. I cannot make it any clearer…
You have been sent to jail for 13 months but you can serve it in the community provided you obey my directions, that is be of good behaviour and obey the reasonable directions of community corrections who will assist you in your ongoing supervision with your psychologist and your drug and alcohol counselling through St George Hospital. Do not come back to court.[6]
[6] Exhibit G-G7, pp 35-36.
Despite these warnings, the applicant appeared before Magistrate Atkinson in the Downing Centre Local Court on 15 March 2018. An extract of the sentencing remarks noted the applicant had breached his good behaviour bond and recorded:
You have got a history of matters of violence on your record. It is clear that you have got problems with alcohol…
It was a situation where there was a fight at the hotel, you had been asked to leave and towards the end you are wrestling with the security guard who was trying to break free and eventually somebody was able to take hold of you and push you down the stairs away from the security guard…
You were supposed to leave the hotel when you’re excluded and you did not leave… You do have matters on your record that suggest there alcohol issues.
The most recent one was when you breached the AVO and went your parents place within 12 hours of drinking alcohol… There was no violence involved… But nevertheless you were aggressive, unsteady on your feet, slurring words by the time the police got there, so it is not the least serious of matters and you’ve also got domestic violence matters on your record.[7]
[7] Exhibit G-G6, pp 31-33.

In his evidence to the Tribunal, the applicant acknowledged the role of alcohol in his offending behaviour. However, although the applicant stated he was remorseful for his offending and ashamed of his behaviour, he downplayed the seriousness of his offending. For example, in response to a police report that described him chasing his younger brother down the street in March 2014 while wielding a knife and threatening to kill him, the applicant noted that this incident was “a joke”. The applicant also demonstrated no insight into the fear that would have been generated for a female travelling alone on a bus at night and being repeatedly approached in an intimidating way by the heavily intoxicated applicant. Rather, in his evidence to the Tribunal, the applicant focused on his being detained by the police following this event. I question the authenticity of the applicant’s remorse in view of his limited insight into the effects of his offending behaviour on his victims.
On 27 July 2015, the applicant’s visa was cancelled and he was detained in Villawood and Christmas Island detention centres for 12 months. On 22 July 2016, the (then) Department of Immigration and Citizenship notified the applicant in writing that they had revoked the decision to cancel his visa on that occasion, and provided him with the following formal warning:
Please note: the decision to revoke the original decision [to cancel your visa] does not mean that you cannot be reconsidered for cancellation on character grounds in the future in the event of further criminal offending by you.[8]
[8] Exhibit G-G21, p 100.
Despite this warning and the experience of being in detention for 12 months, the applicant again committed offences while intoxicated in November 2016, December 2016, April 2017 and January 2018.[9]
[9] Exhibit TB-TB3, pp 14-15, 20-21, 48 and 65.
Considering the relevant factors set out in paragraph 13.1.1 of Direction No. 79, I find that:
·The applicant’s offences include committing serious and violent offences. Victims of the applicant’s offending have included women (his mother) and his younger brother when he was under18 years of age.
·The applicant has committed offences against police officers.
·The applicant’s record of criminal offences shows he has been convicted of 35 offences on 15 occasions from July 2006 to May 2018. He has demonstrated a pattern of repeated and serious offending behaviour.
·There has been a cumulative effect due to the applicant’s repeated offending and he has continued to offend despite repeated warnings from the judicial system.
·The applicant received a written warning from the Department in 2016 that any further offending would result in the cancellation of his visa.
·There is no evidence before the Tribunal that the applicant has ever provided false or misleading information to the Department.
I am satisfied that the frequency and cumulative effect of the applicant’s criminal offending is a matter of very serious concern. I find that the nature and seriousness of his offending weighs heavily against him.
The risk to the Australian community should the applicant commit further offences or engage in other serious conduct
In a personal circumstances form dated 26 June 2018, the applicant stated:
I will be 30 years old in…2018. I’m more mature mindset in working on moving on and setting goals in my life. If I keep drinking I’ll be ending [sic] going to prison or to be deported to New Zealand. I have to work and support my parent[s] who raised me to look after their health in Australia.[10]
[10] Exhibit G-G13, p 71.
The applicant has received good behaviour bonds from the Courts and been provided opportunities to participate in alcohol and drug rehabilitation programs. He attended an assessment and six counselling sessions at St George Drug and Alcohol Services from March 2017 to August 2017.[11] He completed a “save-a-mate Alcohol and Other Drugs Emergencies Course with CPR Demonstration” and “Health Survival Program” in January 2018.[12]
[11] Exhibit TB-TB6, p 98.
[12] Exhibit G-G18, pp 89, 91.
However, Intensive Correction Order Assessment Reports on 26 March 2015, 22 January 2018 and 9 March 2018 recorded the applicant had intermittent and superficial contact with a substance use intervention service, his “engagement [with the service] appeared to coincide with when he had to attend court”, he minimised responsibility for his alcohol consumption and had unresolved alcohol dependence.[13] The applicant’s treating psychologist at St George Drug and Alcohol Services also reported on 29 September 2017 that “he is court motivated in seeking assistance and presents as ‘stubborn’ regarding his alcohol use”.[14]
[13] Exhibit TB-TB8, pp 135-140, 149.
[14] Exhibit TB-TB8, p 207.
I accept the applicant is remorseful and ashamed of his offending behaviour, particularly in view of his potential deportation from his family and Australia. I also accept, in light of his current circumstances, he has a genuine intention to seek rehabilitation for his alcohol dependence. However, I must place minimal weight on this in view of his continued serious offending behaviour for more than 12 years, the reports of his superficial engagement in counselling and rehabilitation programs in spite of many opportunities by the Courts, and the lack of any objective evidence that demonstrates the applicant has shown insight into his offending and reformed.
In considering the harm and potential risk to the Australian community if the applicant were to reoffend in the future, I am mindful of the nature and seriousness of his past criminal behaviour especially towards members of his family.
I cannot be satisfied on the basis of the evidence before the Tribunal that the applicant will not reoffend if he is released into the Australian community. On balance, I find that the protection of the Australian community weighs heavily against revoking the cancellation decision.
PRIMARY CONSIDERATION 2 – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 13.2(4) of Direction No. 79 sets out the factors that I must consider in relation to whether revoking the cancellation decision is in the best interests of a child affected by the decision. Relevant to this factor are the nature and duration of the relationship, the extent to which the applicant is likely to play a positive parental role, the likely effect any separation would have on the child, and whether there are other persons who already fulfil a parental role.
The applicant has three nephews and one niece who are the children of his older brother. He last saw these children in December 2017, which was prior to his incarceration and detention. Both the evidence of the applicant and his brother is that the children identified him as their uncle, and the applicant assisted to collect his oldest nephew from school during periods in 2017.
I note the children have parents, grandparents and other relatives. There is no evidence before the Tribunal that the applicant plays a “parental” role in the lives of his nephews and niece, although I acknowledge the applicant’s contention that his family is “close”.
While I find this primary consideration weighs in favour of the applicant, I do not place any weight on this consideration because the children have parents and other family members present in their lives.
PRIMARY CONSIDERATION 3 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3(1) of Direction No. 79 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.
Having regard to the principles set out in paragraph 6.3 of the Direction, set out in paragraph 15 above, I am mindful the Australian community anticipates a nuanced and balanced approach to considering the extent to which the applicant is a member of the Australian community even though he is not a citizen. The deliberation of Australian community expectations involves “bringing appropriate perspective and proportionality to bear in the assessment of risk.”[15] I therefore consider any positive contributions the applicant has made to society, such as employment, community activities and/or family relationships; and weigh this against his adverse and antisocial behaviour.
[15] Anaki and Minister for Immigration and Border Protection [2016] AATA 693, [89].
The applicant has resided in Australia since 1990. His family members reside in Australia and include his parents, brothers, nephews and niece. References and oral evidence from the applicant’s mother and brother expressed their desire for the applicant to remain in Australia and outlined his role in supporting his parents and younger brother.
The applicant also provided a character references from his former employer, which outlined his employment as a factory worker from July to December 2017 and noted that he was an “excellent worker and a quick learner”.[16] In a written statement on 26 June 2018, the applicant advised his former employer would provide him with employment if he remains in Australia.[17]
[16] Exhibit G-G17, p 88.
[17] Exhibit G-G10, p 42.
I also have regard to the applicant’s statement that he “spent all [his] childhood and adult life here in Australia”.[18] In view of the almost 29 years the applicant has lived in Australia, I accept that the applicant and the life he has led has been shaped in part by his experiences within the Australian community.
[18] Exhibit A5, p 3.
There is no question the Australian community would have empathy for the applicant due to the length of time he has lived in Australia and his connection to his family in Australia. However, this must be weighed against the applicant’s behaviour of committing serious and violent offences over a period of 12 years, many of which were against his parents and younger brother, and his continued disregard for the Australian law and judicial system even after he was warned in 2016 that continuing this behaviour would result in the cancellation his visa. I note that Direction No. 79, in paragraph 6.3(3), requires a person who has committed a serious crime against women and children to “generally expect to…forfeit the privilege of staying in Australia.”
In assessing all the relevant evidence against the requirements of Direction No. 79, I find the applicant’s circumstances do not excuse his criminal offending. On balance, I am satisfied the third primary consideration counts against revoking the mandatory cancellation of the applicant’s visa.
OTHER RELEVANT CONSIDERATIONS IN DIRECTION NO. 79
Paragraph 14 of Direction No. 79 sets out other considerations that must be taken into account in deciding whether to revoke the visa cancellation. Relevant considerations in this matter are the strength, nature and duration of the applicant’s ties to Australia, and extent of impediments if he is removed. I also address the impact on Australian business interests and the impact on victims because the applicant provided submissions in relation to these considerations. For completeness, there is no evidence before the Tribunal that other considerations including international non-refoulement obligation.
Strength, nature and duration of ties to Australia
In considering the strength, nature and duration of the applicant’s ties to Australia, paragraph 14.2(1) of the Direction provides that:
Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The applicant has lived in Australia for nearly 29 years. He arrived as a two-year-old child with his parents and brother, and has only returned to New Zealand to visit for short periods. The applicant has family ties to Australia through his parents, brothers, nephews and niece. He considers himself to be Australian and views Australia as his home. In written submissions on 26 June 2018, the applicant set out the impact of the cancellation on his family as follows:
Devastated and very emotional. It is a huge impact in families [sic] lives, especially my parents. I’m the second child of the family out of the three boys who supported my parent… My older brother have [sic] kids of his own to support. My younger brother have [sic] a medical condition of ADHD mental illness. He cannot support my parent because of his condition.[19]
[19] Exhibit G-G13, p 70.
I am satisfied the applicant has strong family and social ties to Australia, although I must place less weight on this consideration because of his limited positive contribution to the Australian community. I find consideration of the applicant’s ties to Australia weighs in his favour.
Impact on Australian business interests
Paragraph 14.3(1) of Direction No. 79 requires consideration of a person’s employment where non-revocation of their visa cancellation would significantly compromise delivery of a major project or important service in Australia.
The applicant submitted he has contributed to the Australian economy and community through his employment. The evidence before the Tribunal is the applicant was employed as a factory worker for the period from July to December 2017. During other periods of his adult life, he has been in receipt of social security benefits, incarcerated or in detention.
I am not satisfied the applicant’s past or potential future employment will impact on Australian business interests as set out in the Direction.
Impact on victims
The applicant provided submissions about the impact on victims of his criminal behaviour regarding a decision not to revoke his visa cancellation. He stated that most of his victims have been his family members; they understand what he did was wrong and he has taken responsibility for his actions. There are no statements before the Tribunal from victims of the applicant’s criminal conduct, except for the applicant’s mother who does not address his offending behaviour.
Given the lack of evidence, I am not satisfied this consideration should be given any weight.
Extent of impediments if the applicant is removed
The extent of impediments if the applicant is removed from Australia relies on his capacity to reside in New Zealand. Pursuant to paragraph 14.5 of the Direction, I must consider the applicant’s age and health, whether there are any substantial language or cultural barriers, and any available social, medical and/or economic support.
The applicant is 31 years old. Although he told the Tribunal he has suffered from depression, clinical records dated 12 July 2018 show that a psychiatrist found no evidence of mental illness.[20] There are no language or cultural barriers to the applicant returning to New Zealand and obtaining employment. I am satisfied that, as a citizen of New Zealand, the applicant would have access to a public health system and social welfare. However, I accept the applicant’s evidence that he has no known family members in New Zealand and he will be “very challenged”.[21]
[20] Exhibit G-G16, p 87.
[21] Exhibit G-G10, p 47.
I find there are no impediments, apart from being removed from his family in Australia, which would affect the applicant commencing a life in New Zealand. I am satisfied that this consideration weighs for revoking the decision to cancel the applicant’s visa.
CONCLUSION
The first and third primary considerations weigh heavily against the revocation of the cancellation decision. The second primary consideration weighs for the applicant but, for the reasons set out in paragraph 49 above, I place minimal weight on this consideration.
In regard to the other considerations, I find both the applicant’s ties to Australia and the impediments to his removal from Australia weigh for revoking the cancellation of the applicant’s visa. I am satisfied that the considerations of impact on business interests and impact on victims have no effect on this matter.
Noting the requirement that primary considerations should be given greater weight than the other considerations, I am satisfied on balance of the primary and other considerations that it is not appropriate to revoke the decision to cancel the applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

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Associate
Dated: 1 March 2019

Date of hearing: 20 February 2019

Applicant: In person

Solicitors for the Respondent: Mr T Hillyard, Sparke Helmore

Date of hearing:	20 February 2019
Applicant:	In person
Solicitors for the Respondent:	Mr T Hillyard, Sparke Helmore