Migration Act 1958 (Cth): s 501

Ngaronoa v Minister for Immigration and Citizenship (2007) 99 ALD 433; (2007) 244 ALR 119; [2007] FCAFC 196

Puafisi and Minister for Immigration and Citizenship [2009] AATA 689

Direction [no. 41] - Visa Refusal and Cancellation under section 501

1. CTNR has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship to cancel CTNR's visa on the ground that he did not pass the 'character test' because he has a substantial criminal record.

1. CTNR is aged 34 and was born in New Zealand, where he is a citizen. He arrived in Australia on 23 February 2005 and was granted a Class TY Subclass 444 Special Category (Temporary) visa allowing him to remain in Australia indefinitely while he remains a New Zealand citizen.
2. Prior to entering Australia, CTNR had been convicted of a significant number of offences in New Zealand including vehicle-related or traffic offences (between 1995 and 2004), assaulting a person with a blunt instrument (offence committed on 3 June 1995), possession of cannabis seeds (20 July 1995), theft of property (30 October 1995), possession of utensils (4 February 1996), theft of drugs (28 February 1996), possession of pipe/utensil for cannabis (30 August 1996), and possession of cannabis plant (16 May 1997). These convictions variously resulted in his driving licence being suspended, reparation orders, fines, non-residential periodic detention orders of between three and nine months, and a three-month term of imprisonment for two breaches of a periodic detention order.
3. CTNR travelled to Australia following the trial of four men associated with his kidnapping, unlawful detention and assault in which he gave evidence as a witness for the Crown. The four accused were members of a motorcycle gang who were pursuing CTNR to recover a debt of $1,500 concerning the supply of drugs. On conviction, two received sentences of nine years (with a non-parole period of four and a half years), one of six and a half years (with a non-parole period of three and a half years), and one of 18 months (with leave to apply for home detention). As a witness, CTNR was assessed as being at risk and was given a new identity and placed in witness protection in the period leading up to the trial. After the trial, a plane ticket was purchased for him and he travelled to Australia.
4. On arriving in Australia on 23 February 2005, CTNR revealed his criminal record and told an immigration officer that he intended staying for six months. He was granted a visa but warned by the immigration officer that should he commit one offence in Australia, his case would be re-opened and he would be assessed for permanent removal. According to the officer's report, CTNR gave an assurance that he did not intend breaking any laws in Australia and that he appreciated this was the only chance to get his life on track.
5. Despite the warning and CTNR's assurance, his first convictions in Australia date from August and September 2005 and are for fare evasion and various driving matters including driving under the influence of alcohol. His first major non-driving related offences were for forgery (between 15 August 2006 and 26 August 2006), uttering (on 25 August 2006), failure to appear in accordance with undertaking (three charges), breach of bail conditions (two charges), and possess utensils or pipes etc that had been used (on 12 October 2006). CTNR was convicted on all charges but not further punished. On the same day and in the same magistrates court, CTNR was also convicted of a further three breaches of bail conditions (28, 29 and 30 July 2006) and possessing tainted property (on 21 July 2006), for which he was not further punished, and unlawful possession of weapons (again on 21 July 2006) for which he was fined $600.
6. On 13 December 2006, CTNR was convicted on three charges (dated 29 April 2006) of possession of dangerous drugs and fined $650. On 3 July 2008, he was convicted of breach of a bail condition (on 27 June 2008) but not further punished. On 4 August 2008, CTNR was convicted in Brisbane Supreme Court of possessing anything used in the commission of crime, and publishing or possessing instructions for producing dangerous drugs, and sentenced to 12 months imprisonment. As he had already served 255 days on remand (25 August 2007 to 6 May 2008 (when he was released on bail), the judge ordered that CTNR be released on parole. On the same occasion, CTNR was also convicted of possessing utensils or pipes etc for use and possessing dangerous drugs (on 24 August 2007), and possession of property suspected of being the proceeds of an offence under the Drugs Misuse Act 1986 (Qld) (on 21 June 2006), possess utensils or pipes etc that had been used (on 21 June 2006), possessing dangerous drugs Schedule 2 (on 21 June 2006), and dealing with a prohibited thing (on 24 October 2007). He was convicted on all charges but not further punished.
7. CTNR has outstanding charges in respect of incidents on 3 November 2009, 22 November 2009 and 20 January 2010. These charges include unlawful possession of suspected stolen property, two charges of failure to properly dispose of a needle and syringe, and a charge of possessing tainted property, of possessing relevant substances or things, and unauthorised dealing with shop goods. He first appeared in respect of these matters in February 2010.
8. CTNR is in a de facto relationship with Ms S, with whom he has two sons, the older one aged three, and the younger one born prematurely on 11 April 2010, two days before the hearing. According to both CTNR and Ms S, their relationship commenced about seven years ago when they were both living in New Zealand.
9. On 17 November 2008, the Department of Immigration and Citizenship (the Department) notified CTNR that consideration was being given to the cancellation of his visa and inviting his submissions in response. CTNR replied by email on 26 April 2009 with a plea for leniency. On 21 May 2009, the Department sent CTNR a further letter asking him to comment on attached documents. He appears not to have responded to this.
10. On 2 June 2009, a delegate of the Minister found CTNR failed the character test and exercised his discretion in cancelling CTNR's visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (the Act). CTNR was notified of this decision by letter of that date of which he acknowledged receipt on 3 February 2010, when he was taken into immigration detention. On 5 February 2010, CTNR applied to the Tribunal for a review of this decision.

1. Section 501(2) of the Act provides that the Minister may cancel a visa if "the Minister reasonably suspects that the person does not pass the character test". Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record. 'Substantial criminal record' is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
2. On 4 August 2008, CTNR was sentenced to a term of imprisonment of 12 months. Thus, he does not pass the character test.
3. It was therefore open to the Minister to cancel CTNR's visa. In exercising this discretion, the decision-maker must apply Direction [no. 41] - Visa Refusal and Cancellation under section 501 of the Act (Direction No 41). Direction No 41 contains a number of primary considerations and other considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa.
4. The primary considerations in Direction No 41 are set out in paragraph 10(1):
   1. The primary considerations
      • (1) In deciding whether to refuse to grant a person a visa or cancel a person's visa, the following (the primary considerations) are to be considered:
        • (a) the protection of the Australian community from serious criminal or other harmful conduct, particularly crimes involving violence;
        • (b) whether the person was a minor when they began living in Australia;
        • (c) the length of time that the person has been ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct; and
        • (d) relevant international obligations, including but not limited to:
          • (i) the best interests of the child, as described in the Convention on the Rights of the Child (CROC); and
          • (ii) the non-refoulement obligations contained in the Convention and the Protocol Relating to the Status of Refugees (the Refugees Convention), the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

5. These considerations are elaborated on by reference to a range of factors to which regard must be had. There are also a number of other considerations that, where relevant, must be taken into account but, generally, in accordance with Direction No 41 paragraph 11(2), they should be given less weight than the primary considerations. Those other considerations are discussed below.

1. CTNR provided a statement dated 7 April 2010 and gave oral evidence at the hearing. He stated that he was sexually assaulted by an older male family friend at the age of 13. When he told his family of this, they did not believe him, but his sister told students at his school of this and they called him a "faggot". As a result, his relationship with his family deteriorated and he left home and lived on the streets for several years where he started using drugs and alcohol. Because of the expense of buying drugs, he started to grow and manufacture drugs. He said this was principally for his own use although he acknowledged that he did sell drugs to support himself and to help friends and "to buy back some dignity". At around this time, he also started working as a male prostitute "getting money for favours ... with ladies".
2. CTNR's offences from this time mostly relate to driving or cannabis. The assault charge (3 June 1995) was from the time that he was working as a teacher's aid at a school for disadvantaged children. He had a nice house but, when he had some street people sleeping on his lounge, some people "stole my stuff". After he and a friend had had "a few bourbons", they went looking for the man they believed responsible and then his friend hit the man with a cricket bat. Unfortunately, it was the wrong man. Since CTNR refused to tell the police who was responsible for the assault, he was also charged, although he said he did not actually hit the man. CTNR also said he has never been a thief. The theft charges arose similarly out of his associating with others.
3. CTNR said that it was as a result of his knowledge of how to manufacture methamphetamine, which was not widely known at that time, that he was kidnapped by a gang who wanted him to manufacture drugs for them, which he refused to do. He was kidnapped by gang members on five occasions, severely beaten and, on one occasion, locked in a shipping container for about 50 days.
4. On the occasion in respect of which gang members were later prosecuted and convicted, the judge's sentencing remarks describe how CTNR owed $1,500 to one of the accused for the supply of drugs and, when he was unable to immediately repay the debt, he was kidnapped, severely beaten and subjected to what amounts to torture including, according to the trial judge, having his hands and feet tied together with wire, having a sock doused with petrol jammed into his mouth, and his body suspended horizontally, face down, by a wire from the roof of a garage while he was kicked about the face and ribs, and hammered on the right knee. As stated above, the four accused received prison sentences ranging from 18 months to nine years.
5. When CTNR agreed to give evidence for the prosecution, he received threats from those associated with the accused. An officer with the New Zealand police, Detective Logan Nicholas, gave evidence at the Tribunal hearing that CTNR was assessed as being at risk, placed in the witness protection program and given a new identity. It was a condition of the witness protection program that he have no further contact with his family, including with his 11-year-old daughter, who lives with her mother in New Zealand. CTNR was relocated to Christchurch on the South Island, where he met Ms S, but the motorcycle gang found him there within a month.
6. At the conclusion of the trial, CTNR and Ms S were given plane tickets to enable them to travel to Australia. However, Ms S decided not to accompany CTNR at that time because of "the shame of his testifying", instead following later. Detective Nicholas said that no further protection was provided for CTNR after his departure from New Zealand when he ceased to be in the witness protection program.
7. On arrival in Australia, CTNR declared his criminal record and was questioned by an immigration inspector. After establishing CTNR's background, the inspector granted him a visa but counselled CTNR about character concerns and his expected behaviour in Australia. He told CTNR that should he commit one offence in Australia his case would be re-opened and he would be considered for permanent removal. In giving evidence at the Tribunal hearing, CTNR acknowledged that he understood the warning given to him by the immigration inspector but said that he did not realise the gravity of the situation.
8. CTNR said that on arrival, he went to stay with his (paternal) aunt and they set up an aluminium coating business (he has a trade certificate in spray-painting that he obtained in New Zealand), work that he had done with his father in New Zealand. This ended when he had a "falling out with my aunt and family members". Thereafter, CTNR worked as a concreter and on a longline tuna-fishing boat.
9. CTNR was asked about the events of 2006 and 2007 that led to his Supreme Court convictions and which were referred to in the sentencing remarks of Philippides J. Her Honour referred to a search warrant executed by the police on 21 June 2006 on a house where CTNR was living with a friend, and noted that CTNR had drugs on the premises and police found a variety of equipment and also instructions for making methamphetamine. CTNR told the Tribunal said the police found some "blister packs" for cold medicines, which were nothing to do with him. He gave the Tribunal the unconvincing explanation that he only had the written instructions "out of interest" and he thought it was legal to possess written instructions for making methamphetamine providing one did not copy them. He only ever produced methamphetamine to support his own drug habit.
10. CTNR said that the second warrant referred to by Philippides J, executed by police on 24 August 2007, was on the house of a friend where he happened to be at the time dropping off a car. The police found four LSD tablets in his wallet. He could not remember why he was carrying these around.
11. He said it was while he was at sea working on the tuna fishing boat that Ms S ended their relationship and then, when travelling in a car with her boyfriend and her and CTNR's son, was involved in a high-speed car chase which ended with them being caught by the police. CTNR then left the fishing boat immediately to take care of his son, who had been placed in foster care as a result of his son and Ms S testing positive to drugs.
12. CTNR said that as his son's full-time carer, he found it difficult to find work and survive on very little money coming in weekly. He therefore started working at night as a male prostitute, which enabled him to be there for his son during the day. Slowly, he and Ms S got back together again. They attended counselling and she undertook some positive parenting courses, and after about five months Ms S was again permitted to be involved in caring for their son.
13. CTNR said that when he was in prison he stopped taking drugs and began attending drug and alcohol programs although he did not complete these before he was released on bail. He did not find the courses helpful because they did not seem to address his problems. However, in 2009 he began a counselling program with Dr Bryan Thompson, which he found helpful because Dr Thompson listens and tries to help him with the problems he has.
14. CTNR acknowledged that he has had several relapses with drugs, starting about a year after being released from prison. He was very disappointed and angry with himself but he did not become addicted again. He has not "kicked the addiction 100%" but if he relapses he will not stay on drugs. He said that since being released from prison, he has tried to abide by the law and has steered away "from heaps of things". However, he still associates with a few people he associated with previously, although not on the same level.
15. CTNR has three groups of outstanding police charges against him, each arising from police stopping different vehicles in which he was travelling .The circumstances admitted by CTNR to the Tribunal involve travel in vehicles suspected of being stolen, uninsured, carrying false registration, displaying incorrect plates and containing drug paraphernalia. On two occasions it is alleged he was the unlicensed driver of the vehicles.
16. The charges on 3 November 2009 comprise drive unlicensed, vehicle unregistered, uninsured and with incorrect registration label and plates, possession of suspected stolen property and "fail to properly dispose of needle and syringe". The charges on 22 November 2009 comprise unlawful use of a vehicle, possession of tainted property and two charges of possess "relevant substances or things". The charges on 20 January 2010 comprise "unauthorised dealing with shop goods" (petrol), unlicensed driving of a vehicle unregistered, uninsured and with incorrect registration label and plates.
17. CTNR said the charges on 3 November 2009 arise from him agreeing "to drive a mate across town". He had a drink with GHB (gamma-Hydroxybutyrate - liquid ecstasy) in it and could not drive. He remembers being in the car on the sixth floor of a multistorey car park and has no recollection of how he got to the ground floor. He does not know what happened except that he woke up in hospital two days later.
18. With regard to the charges on 22 November 2009, CTNR said he bought a second hand BMW car for $9,000, comprising the part exchange of his motorbike and $6,000 in cash. At the time he was pulled over by police on 22 November 2010, he still owed $3,000 for the car and, therefore, title to the car had not yet been transferred into his name. He did not know it was stolen and would not have swapped his motorbike for it had he known.
19. With regard to the charges on 20 January 2010, CTNR was driving a car with a friend as a passenger when the police signalled him to pull over. His friend wanted him to drive on but he stopped and got out of the car. His friend then took off in the car and drove to a petrol station where he filled up with petrol and then left without paying. The friend was apprehended by police about three weeks later. CTNR said he knew nothing about the syringe in the car. The police charged him in relation to the syringe even though it was not his.
20. These explanations reinforce an impression that CTNR has not learned to avoid a milieu of drug use, lawbreaking and disregard of community obligations. His protestations of ignorance of the actions of his friends, of the contents of the vehicles and of the unfairness of the police must be treated with grave reservation by the Tribunal. His demeanour was of injured innocence rather than contrition or concern that within a three-month period a short time ago, he found himself in situations of jeopardy and on serious charges with a second child on the way and facing deportation.
21. CTNR acknowledged that Ms S has also been on drugs, which resulted in their son being taken from her care and placed in his care. They got back together after the counselling and were living as a family when he was taken into immigration detention. He loves Ms S "to pieces" and he believes they now have a stable relationship. CTNR described his relationship with his first son as "awesome". He acknowledged that it took a while to establish. His second son was born on 11 April 2010, six weeks prematurely.
22. CTNR said he wants to remain in Australia and lead a law-abiding productive life with his family. He "would trade everything" to be with his family. He fears for his safety if he has to return to New Zealand and still hates sleeping because it was when he was sleeping that members of the motorcycle gang kidnapped him. Gang members have found him three times in Australia but the statutory declarations he made under duress were not accepted by the appeal court and he has not yet been physically accosted.
23. CTNR has four sisters and his parents in New Zealand. It was only three years ago when the man who sexually assaulted him as a child was prosecuted that his parents finally believed him. He has only recently starting getting on again with his mother. She came to visit him in Australia but had to return home when she became sick. It is with her that he mainly keeps in touch.
24. CTNR said there had been some discussion of his daughter in New Zealand coming to live with him at the time of his sentencing in 2008, but this did not happen because he was "dealing with his own problems" and "could not cope with it". This does not appear to be the way the relationship with his daughter was presented to Philippides J on CTNR's behalf. He does not provide any financial support for her and has not been allowed any contact: "she is perfectly fine with her mother".
25. CTNR is confident that he would be able to find employment if he is released into the community. After he was released from being on remand in 2008, he was employed by a concreter. The concreter has provided a letter to the Tribunal, stating that he is aware of CTNR being in immigration detention and that he has a criminal history, and confirming that CTNR was previously employed in his company and "it would be my pleasure to employ him again as he is a conscientious and hard working young man".

1. The relevant primary considerations in CTNR's case are the protection of the Australian community, the length of time he was ordinarily resident in Australia prior to engaging in criminal activity or other relevant conduct, and international obligations including the rights of any relevant children and CTNR's rights under the International Covenant on Civil and Political Rights.

1. Direction No 41 identifies two factors relevant to this consideration: the seriousness and nature of the relevant conduct, and the risk that the conduct may be repeated.
2. Paragraph 10.1.1(3) states that "The sentence imposed for an offence is considered indicative of the seriousness of the offender's conduct against the community", and regard must be had to the number and nature of offences, the period between offences and the time elapsed since the most recent offence. Among the factors to be considered pursuant to paragraph 10.1.1(4) are any judicial comments made about the person, parole assessments and any relevant mitigating factors.
3. With regard to the seriousness of CTNR's conduct, the Tribunal notes the examples of offences and conduct that are considered serious in paragraph 10.1.1(2). These examples include that in paragraph 10.1.1(2)(f), "the production, possession, importation or trafficking of trafficable quantities of illicit drugs", about which there is a note stating that this "is not intended to include offences related to personal use of drugs less than a trafficable quantity". While CTNR has been convicted of drug-related offences, there is no evidence that these have involved trafficable quantities. Another example of an offence considered serious, paragraph 10.1.1(2)(m), is serious theft. CTNR has two theft convictions in New Zealand: on 28 November 1995 for "theft property ($500 - $5,000)" and on 11 April 1996 for "theft drugs (under $500)". The list of offences and conduct in paragraph 10.1.1(2) is stated to be non-exhaustive.
4. CTNR's evidence establishes that he has at various times been involved in the manufacture of methamphetamine. He says this has only been to support his own habit although he admitted he used to supply friends and sell drugs to support himself. The Tribunal found unconvincing his evidence about possessing instructions for making methamphetamine and in relation to the presence of drug-making utensils and "blister packs" found when police executed a search warrant on the house where he was living with a friend in June 2006. In our view, it is likely that CTNR had been involved in the manufacture of methamphetamine even if this was primarily to support his own habit. The Tribunal found CTNR's evidence about the presence of four LSD tabs in his wallet - he said he did not know why he was carrying them around - when the police executed another search warrant in August 2007, equally unconvincing. Methamphetamine and LSD are drugs that have caused and continue to cause significant harm in the Australian community.
5. The Tribunal is satisfied that CTNR has been involved in serious misconduct in Australia, although noting the comment made by Philippides J on sentencing CTNR on 4 August 2008 that "it was not contended that there was any commerciality in your offending". Her Honour acknowledged CTNR's stable relationship and his children, and commented that "you have been accorded leniency in the sentences that I have imposed today".
6. Apart from taking into account the seriousness of the relevant conduct, the Tribunal must also take into account the risk that the conduct may be repeated. Philippides J noted that the 2006 and 2007 offences were committed while CTNR was on bail. CTNR's record evidences a propensity not to abide by court orders. His record in New Zealand indicates that he served a three-month prison sentence for two breaches of periodic detention orders, and his record in Australia includes failure to appear in accordance with undertaking (according to the Queensland Police Service, three charges on 22 August 2006 and 1 September 2006), breach of bail conditions (two charges relating to periods in August 2006), and breach of bail conditions on 27 June 2008.
7. CTNR also has a significant number of driving-related convictions in both New Zealand and Australia. The picture that emerges from his record is that of a person who is prone to disregard the law. The fact that he has three outstanding charges before the magistrate's court in Queensland, albeit that that these do not appear to be serious matters also tends to support this impression. While the Tribunal recognises that the charges are as yet unresolved, it may nevertheless take notice of the charges: _Ngaronoa v Minister for Immigration and Citizenshi_p (2007) 99 ALD 433; [2007] FCAFC 196. Despite CTNR's stated intention of being a law abiding member of the community, even if no conviction results from the recent charges, his conduct tends to suggest that he will continue to be involved in misconduct especially since, by his own admission, he continues to associate with former acquaintances from before his imprisonment.
8. The Tribunal notes the report prepared for the Department by CTNR's reporting officer and her supervisor at Queensland Corrective Services, received by the Department on 23 February 2010. The report states that CTNR received a score of 5 out of 20 on the likelihood of reoffending, and it noted that he was currently involved in stable employment and his "commitment to his employment and his growing family is positive". The Tribunal notes however, that CTNR's parole was completed on 21 November 2008 and presumably, as a result, the report makes no reference to subsequent events.
9. The Applicant provided the Tribunal with a psychological report from W John Taylor, clinical forensic psychologist, dated 26 March 2010, and Mr Taylor gave oral evidence by telephone at the hearing. In his report, Mr Taylor diagnosed CTNR as suffering from a personality disorder with some antisocial characteristics and also with a drug dependence disorder. The results of impulsivity testing:

indicate that he has inadequately developed personality structures for containing drive and impulse. He is prone to behaving in a rather short sighted and risk-taking manner. He is also likely to engage in sensation seeking behaviour. His potential to behave impulsively is exacerbated if he experiences strong negative emotions and he may then act out his feelings in a poorly modulated manner.

1. Mr Taylor said the assessment revealed a number of antisocial characteristics including identifying "with some antisocial intentions and with antisocial friends and acquaintances". He assessed CTNR as having a moderate risk of recidivism. (CTNR scored a total of 40 on the Self-Appraisal Questionnaire, "within the range of high-moderate risk of recidivism".) While CTNR stated that he was motivated not to re-offend, "there is a prospect of him engaging in further substance abuse and therefore criminal activity". Mr Taylor recommended relapse prevention counselling. In oral evidence, Mr Taylor said he was not aware of any recent criminal activity or, in relation to the stability of CTNR's relationships, of Ms S's criminal conviction and drug use in 2009. Ms S's motivation to be drug free could also help CTNR. He said the fact that CTNR may have had a few relapses with drugs would not surprise him nor change his view of CTNR's commitment.
2. The Tribunal was also provided with a statement from Dr Bryan Thompson, dated 7 April 2010, who gave oral evidence by telephone at the hearing. Dr Thompson has degrees in science and a PhD in Health Administration. He agreed that he has no medical qualifications nor any formal training or qualifications in psychology. He runs training programs for the Queensland Department of Education and Training, by which he is accredited, for example, in cognitive skills, life skills and anger management. He first met CTNR in mid-2009 and has seen him about eight or nine times since then, most recently in mid-January 2010. Dr Thompson has conducted one-on-one counselling with CTNR, has started CTNR on anger management and cognitive skills programs, and was about to start CTNR on a (drug) relapse prevention program at the time he was detained. Overall, CTNR is about 25% to 30% into the treatment program. Dr Thompson said he gets on well with CTNR and has met CTNR's partner, Ms S, with whom CTNR has a loving relationship. CTNR has a strong commitment to not relapsing and to being a father.
3. Dr Thompson said he is aware of Ms S's convictions and of CTNR's impending charges for driving offences and in respect of drug implements being found in the car. CTNR knows he did the wrong thing and Dr Thompson does not consider these major charges, although the fact that the incidents were close together is a matter of concern.
4. In the Tribunal's view, while CTNR's evidence is that he is committed to living a law-abiding and productive life with his family, CTNR's past record and recent charges and the evidence of Mr Taylor indicates that there is at least a moderate risk of CTNR committing further offences including those related to drugs. Given the serious nature of the offences of which CTNR has been convicted and the risk of recidivism, the Tribunal has formed the opinion that the first primary consideration, the protection of the Australian community, favours the cancellation of his visa.

1. CTNR has been an Australian resident since his arrival on 23 February 2005. Paragraph 10.3(1) of Direction No 41 states that "more favourable consideration is to be given the longer the person has been ordinarily resident in Australia prior to engaging in criminal activity or activity that bears negatively on their character". In this instance, there was a period of 16 months between the time CTNR arrived in Australia and the time of the first (non-traffic offence) criminal activity in respect of which he was charged, following the execution of a search warrant on 21 June 2006.
2. Because of this short period of non-offending, this consideration should not be treated as a consideration favourable to CTNR. Rather it should be regarded as a neutral factor. (See also Re Puafisi and Minister for Immigration and Citizenship [2009] AATA 689, at [39] to [41].)

1. Direction No 41, paragraph 10.4.1(4) states: "Under Australian law, it is generally presumed that a child's best interests will be served if the child remains with its parents".
2. The Direction sets out a number of factors to be considered in ascertaining the best interests of the child. These include, relevantly, the nature of the relationship between the child and the person; the duration of the relationship including the number and length of any separations and the reasons for those separations; the extent to which the person is likely to play a full parental role in relation to the child; the child's age, citizenship and relationships with others in a parental role; the likely effect that any separation from the person would have on the child; the impact of the person's prior conduct on the child; any known wishes expressed by the child; and the circumstances of the probable country of future residence and any language and cultural barriers there for the child.
3. CTNR has two children in Australia - an older son aged three, and a younger son who was born prematurely on 11 April 2010. He also has one other child, an 11-year-old daughter, who lives in New Zealand with her mother. CTNR's two sons, although both born in Australia, are not Australian citizens. CTNR's described his relationship with his older son as "awesome" and the Tribunal notes that CTNR became his son's primary carer when his son was removed from Ms S's care for about five months. Ms S described CTNR as a "great dad" and said his children mean everything to him and it is this that will keep him off drugs. We note CTNR was permitted home visits from immigration detention to be with Ms S prior to and at the time of the birth of his younger son.
4. The Tribunal accepts that it is in the best interests of CTNR's children if they remain in the care of their parents. If CTNR is not permitted to remain in Australia, it is open to Ms S to return to New Zealand with their children so that they can continue living as a family. However, Ms S's evidence is that she would not do so because of the threats she received around the time of the trial in which CTNR gave evidence for the prosecution in February 2005. She is still fearful of these threats because of the risk of harm to her children.
5. Detective Nicholas of the New Zealand police provided an email for these proceedings dated 24 March 2010 and gave oral evidence at the hearing by telephone. Detective Nicholas confirmed that CTNR had been placed in the witness protection program because he was assessed as being at risk as a result of the crime of which he was a victim being gang-related and police holding serious concerns for his safety. He said that if CTNR returned to the area where the offences in respect of which he was the victim took place (the Bay of Plenty area on the North Island): "I believe that harm may come to him or his family". However, if CTNR "chose to live in a different part of the country and not draw attention to himself, this threat would diminish".
6. Detective Nicholas said that of the four convicted and sentenced, two have now been released from prison. One of these, now on parole, who refused all attempts at rehabilitation while in prison, is regarded by Detective Nicholas as bordering on psychotic. If this man knew of CTNR's whereabouts, his life would be at risk. CTNR is less at risk if he remains in Australia. If CTNR returned to New Zealand and sought protection from the police, the level of risk would need to be assessed before any protection was provided.
7. The Tribunal notes, however, that even with CTNR having a new identity and living in Australia, associates of those convicted were able to locate him in Australia and pressured him into recanting his previous evidence for the purpose of the appeal. The New Zealand Court of Appeal commented about the two statements proffered by CTNR on the appeal that "[b]oth documents reek of coercion" and were the result of "improper pressure by persons unknown" but probably acting at the behest of the appellants. CTNR told the Tribunal that gang members had found him three times in Australia.
8. The Tribunal is not sufficiently well informed to be capable of assessing the degree of risk to CTNR and his family in New Zealand. However, we note that it would be open to CTNR to, for example, return to the South Island of New Zealand, where Ms S's family are located, and that it was Detective Nicholas's view that if CTNR did this and maintained a low profile, any risk of harm would be reduced. The Tribunal also notes that New Zealand has a long-established legal system including police to which CTNR and his family could turn if they were the subject of further threats of harm.
9. Nevertheless, with regard to the best interests of CTNR's children in Australia, the Tribunal accepts that their interests favour his visa not being cancelled.

1. Document No 41 also identifies as primary considerations other relevant international obligations, for example under the International Covenant on Civil and Political Rights (ICCPR). In the Tribunal's view, this matter does not raise non-refoulement issues. CTNR is not at risk of persecution if he is returned to New Zealand and he is not a refugee. The potential threat to CTNR is not from the State but from those who were convicted in the trial in which he gave evidence and their associates.
2. The ICCPR provides for the protection of the rights of individuals to life, liberty and security of person, including the right not to be subject to torture or to cruel, inhuman or degrading treatment or punishment. Detective Nicholas's evidence about the threat to CTNR is set out above. The Tribunal accepts that CTNR fears for his safety if he has to return to New Zealand. However, it is clear that if the police assessed CTNR to be at risk, action could be taken to protect him and his family, in the same way that CTNR was placed in the witness protection program prior to and during the trial of those against whom he gave evidence.
3. The Tribunal is not satisfied on the evidence before it that for Australia to return CTNR to New Zealand would involve a breach of its other international obligations.

1. As noted above, Direction No 41 states that other considerations, where relevant, must be taken into account but, generally, should be given less weight than primary considerations. Relevant other considerations in CTNR's case specifically referred to in the Direction are his family ties and the nature and extent of his relationships with those in the Australian community, his age, his links with New Zealand, the hardship that may be experienced by both CTNR and his immediate family members in Australia, his level of education and contribution to the Australian community, and whether he has been formally warned in the past that his visa might be cancelled because of his criminal conduct. The other considerations listed are not exclusive, however, and the Minister has also referred to the expectations of the Australian community as a relevant other consideration in this case.
2. The evidence before the Tribunal establishes that CTNR has family in both Australia and New Zealand. He appears to have little contact with his parents or sisters in New Zealand, in large part because of their strained relationship following his sexual assault at the age of 13 and the period he spent living on the streets. However, CTNR said he does now have some contact with his mother who has visited him in Australia on one occasion. CTNR also has an 11-year-old daughter in New Zealand with whom he appears to have largely lost any close relationship when he was placed in the witness protection program (which required that he sever ties with his family), and following his move to Australia.
3. The Tribunal accepts CTNR's and Ms S's evidence that they have a good, loving relationship, which has endured seven years despite CTNR's move to Australia and his period of imprisonment. Ms S said she and CTNR plan to get married around the Christmas/New Year period. However, the Tribunal also notes the apparent breakdown of that relationship for a short period in mid-2009 when Ms S took drugs (amphetamines), had another boyfriend, was involved in a car chase when Ms S's and CTNR's older son was present in the car, and was convicted of drug and other offences. Following this, their older son was taken from her care and placed in CTNR's care.
4. After counselling over a period of about five months, Ms S and CTNR subsequently reconciled, and she was permitted to care for their older son once again. Ms S's evidence is that she is still receiving counselling and no longer associates with those with whom she got into trouble in 2009. She has made new friends through going to community centres, playgroups etc. As noted above, she said she fears for the safety of her children if she were to return to New Zealand with them and, while she would keep in contact with CTNR if he is returned to New Zealand, she will remain in Australia. In the Tribunal's view, it nevertheless would be open to Ms S to return with CTNR to New Zealand where her family are located on the South Island.
5. The Tribunal accepts that if CTNR is returned to New Zealand and Ms S and their children do not accompany him, this will cause them all hardship, especially since the children are so young and require parental support.
6. CTNR's and Ms S's evidence indicates that he is hard working and a letter from his former employer, a concreter, states that "it would be my pleasure to employ him again as he is a conscientious and hard working young man who is always prepared to complete his work within the time given and to do it well". CTNR is now aged 34 and also has training and experience in aluminium spray-painting, and has also worked as a longline tuna fisherman.
7. While CTNR has not been formally warned by the Department that any further misconduct could lead to his deportation, the Tribunal notes that on his arrival in Australia on 23 February 2005 he was warned by an immigration inspector that should he commit one offence in Australia he would be assessed for permanent removal. CTNR is recorded as giving an assurance that he did not intend breaking any laws in Australia and that he appreciated that this was his only chance to get his life on track.
8. With regard to community expectations, Ms Tibbey, for CTNR, submitted that with a full knowledge of all the circumstances, the Australian community would see this as a case for the exercise of the discretion in his favour, giving him "another chance". Ms Hooper, for the Minister, submitted that CTNR did not have regard to the opportunity afforded to him by being in Australia and, in the light of the moderate risk of recidivism and the fact that he can be reintegrated into New Zealand if returned there, the Australian community would not expect that the discretion would be exercised in his favour.
9. In the Tribunal's view, the community would be concerned by the evidence associating CTNR with the manufacture of methamphetamines in 2006, of possession of LSD in 2007 and of at least occasional drug-taking since his release from prison raising questions about his rehabilitation.

1. Summarising the above discussion, and having regard first to the primary considerations identified in Direction No 41, the Tribunal finds that CTNR committed serious offences associated with the manufacture and consumption of dangerous drugs. Moreover, despite a period of imprisonment and at least some counselling, recent charges indicate that he continues to be prone to risk-taking and to associate with those who engage in criminal behaviour such that the risk of his reoffending remains moderate. Thus, the protection of the Australian community strongly favours the cancellation of his visa. The Tribunal considers the length of time CTNR has been ordinarily resident in Australia to be a neutral consideration.
2. With regard to international obligations, the Tribunal finds the best interests of CTNR's two children in Australia to favour not cancelling the visa. However, we are not satisfied that the family could not relocate to a different part of New Zealand from that with which CTNR was formerly associated. The Tribunal is not satisfied that returning CTNR to New Zealand would involve a breach of Australia's other international obligations.
3. Turning to the other considerations, the Tribunal accepts that returning CTNR to New Zealand would disrupt the situation of his immediate family in Australia and, to that extent, would cause both CTNR and Ms S hardship. However, both CTNR and Ms S have families in New Zealand, where both are citizens and have lived most of their lives, and the Tribunal's view is that CTNR and his family could reintegrate into the community there. While threats to CTNR and his immediate family's safety are possible, they can take steps to minimise this in terms of to where in New Zealand they might relocate and the profile they maintain in the community. In any event, if they are subject to threats, they can seek protection from the New Zealand police.
4. CTNR received a warning from an immigration inspector on entering Australia that reoffending would lead to his being assessed for permanent removal, a warning that he acknowledged at the time. He has ignored that warning and, in the Tribunal's view, the community would be concerned by the evidence associating CTNR with the manufacture of methamphetamines in 2006, of possession of LSD in 2007 and of at least occasional drug-taking since his release from prison raising questions about his rehabilitation and of his continuing propensity for risk-taking behaviour.
5. Having taken into account both the primary and other considerations, the Tribunal concludes that the discretion in s 501(2) of the Act to not cancel CTNR's visa should not be exercised in his favour.

1. The Tribunal affirms the decision under review.

I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RP Handley, Deputy President, and Senior Member D Letcher QC.

Applicant representative: Ms A Toliopoulos, Legal Aid Commission

Respondent representative: Ms K Hooper, DLA Phillips Fox