Decision of the Minister
6 The Minister's statement of reasons for his decision under s 501CA of the Migration Act, being a decision not to exercise discretion to revoke a mandatory cancellation visa decision under s 501(3A), is dated 15 August 2016.
7 The Minister noted that Mr Berney had made representations seeking revocation of his visa cancellation.
8 The Minister was not satisfied that Mr Berney passed the character test (as defined by s 501) with the result that s 501CA(4)(b)(i) of the Migration Act was not met. This was because of the operation of s 501(6)(a) (substantial criminal record) and because Mr Berney was serving a sentence of imprisonment for unlawful use of motor vehicles, aircraft or vessels; receiving tainted property and unlawful possession of motor vehicles, aircraft or vessels (for which he was sentenced to 18 months prison). Mr Berney was also convicted of contravention of domestic violence orders and possessing dangerous drugs.
9 The Minister then considered whether, in light of Mr Berney's representations and the documents he had submitted, whether there was another reason why the original mandatory visa cancellation decision should be revoked. Reasons submitted by Mr Berney were that:
he did not wish to be separated from his two minor children who were in Australia;
he feared the unknown;
he did not wish to go back to a country he did not remember or know anything about;
he was truly remorseful for his past conduct.
10 First, so far as concerned Mr Berney's minor children, the Minister concluded that it was in the best interests of Mr Berney's children for the visa cancellation decision to be revoked. The Minister also found that any harm to Mr Berney's other minor relatives, including his partner's four children and his nephews and nieces, as well as children of friends, would be reduced because Mr Berney was not their primary carer, although the Minister also noted that Mr Berney's removal from Australia would preclude him establishing a direct relationship with them.
11 Second, the Minister had regard to the strength, nature and duration of Mr Berney's ties to Australia. In particular the Minister noted that Mr Berney had lived in Australia for approximately 30 years since he was a child of five years and 10 months, and formed the view that the Australian community may afford a higher tolerance of Mr Berney's criminal conduct because of the length of his stay in Australia and the fact that he spent his formative years in Australia. The Minister noted that Mr Berney began to offend from the early age of 15 years. The Minister also noted Mr Berney had many relatives and friends in Australia, that his friends would support him if he were released back into the Australian community, and that his family would suffer distress if Mr Berney were removed to New Zealand. The Minister concluded that Mr Berney had strong family and social ties to the Australian community.
12 Third, while the Minister noted that Mr Berney was not familiar with New Zealand, and that his removal would cause him emotional hardship, the cultural similarities between Australia and New Zealand were such that any hardships Mr Berney suffered from returning to New Zealand would not be serious.
13 Fourth, the Minister had regard to the issue of the protection of the Australian community. In his reasons the Minister noted:
In Mr Berney's more recent convictions of 3 September 2014 the Court had noted that Mr Berney had 10 pages of criminal offending, had been given periods of imprisonment for identical or similar offending, and the Court viewed Mr Berney's conduct as "very serious".
Mr Berney had a history of violent offending in Australia, with his National Police Certificate dated 8 January 2015 listing the following offences:
• 31 October 2013 assault or obstruct police officer (convicted, no further penalty imposed);
• 21 June 2011, assaults occasioning bodily harm (imprisonment for six months);
• 4 August 2008, common assault (imprisonment for four months);
• 14 July 2006, assaults occasioning bodily harm (imprisonment 18 months);
• 9 July 2001, assaults occasioning bodily harm (two counts) (imprisonment three years suspended to be of good behaviour for for yours after having served 336 days);
• 4 November 1998, assault police (fined $200);
• 8 December 1997, assault occasioning bodily harm (imprisonment two years);
• 25 September 1997, assault police office in performance of duty (fined $200).
(Errors in original.)
14 The Minister noted that Mr Berney had been subject to domestic violence orders and had been in breach of those orders.
15 The Minister also noted that Mr Berney had a very poor traffic history.
16 The Minister observed:
47. Mr Berney has a consistent pattern of offending since 1994, featuring violent offending, stealing, possessing dangerous drugs and breach of order. He has received sentences of imprisonment for his offending, the longest being three years, which reflect the gravity of his offending. Mr Berney has continued his pattern of violent offending despite receiving formal warnings in 2004, 2008, 2011 and 2013. I find that Mr Berney's violent and violence related convictions are very serious.
17 In respect of Mr Berney's potential risk to the Australian community, the Minister noted that Mr Berney had a history of substance abuse, that he had expressed remorse for his offending and that his partner would help him. The Minister noted that Mr Berney had been previously considered for visa cancellation in 2004, 2008, 2011 and 2013, and that "Mr Berney had been warned four times that further criminal convictions could result in reconsideration of cancellation of his visa".
18 The Minister noted that Mr Berney had attended courses to assist him in dealing with his problems, and that despite this positive attitude Mr Berney had continued to offend over a lengthy period up to 3 September 2014. The Minister continued:
55. Mr Berney has been held in immigration detention since his release from prison on 26 March 2015 and his rehabilitation has not been tested in the community. I note that while in immigration detention Mr Berney has had a number of minor incidents involving abusive/aggressive behaviour and contraband.
56. I find that Mr Berney's breaches of judicial orders show a disregard for judicial authority, law enforcement and judicial processes.
57. Mr Berney's criminal history, substance abuse, past breaches of judicial orders and the failure of four past warnings to curtail his offending, suggests there is a likelihood that he will re-offend. While Mr Berney is remorseful for his offending and has attended programs in the past aimed at addressing his substance abuse issues, these programs attendances failed to stop his offending behaviour. I consider that further offending of a violent nature by Mr Berney could result in physical harm to members of the Australian community.
19 In conclusion the Minister noted while there were factors supporting revocation of the visa cancellation decision (including the interests of his minor children, the length of time he had lived in Australia, and the consequences of his decision for Mr Berney's family members) the Minister gave significant weight to the very serious nature of crimes committed by Mr Berney, which had been of a violent nature. The Minister noted:
63. I am also mindful of the principle that persons who commit serious crimes should expect to forfeit the opportunity of remaining in Australia.
20 The Minister noted that he could not rule out the possibility of further offending by Mr Berney, and that members of the Australian community could be exposed to great harm should Mr Berney reoffend in a similar fashion. The Minister continued:
65. I am cognisant that where great harm could be inflicted on the Australian community even other strong countervailing considerations may be insufficient for me to revoke the decision to cancel the visa, even applying a higher tolerance of criminal conduct by Mr Berney, than I otherwise would because he has lived in Australia for most of his life, or from a very young age.
21 The Minister concluded that Mr Berney represented an unacceptable risk of harm to the Australian community, and protection of the Australian community outweighed the best interests of Mr Berney's two minor children, and other minor family members, as well as other considerations including Mr Berney's lengthy residence and bonds, employment in Australia, and hardship he would endure following repatriation to New Zealand.