1. Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of sections 501(6) and 501(7).
2. 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 subsection 501(7).
3. Section 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
4. Section 501CA(4) of the Act provides that the Minister may revoke the original cancellation decision if the Minister is satisfied that the person passes the character test as defined by section 501(6); or that there is another reason why the original decision should be revoked. This is a discretionary power.
5. The power of the Tribunal to review the decision to cancel the applicant's visa is provided by section 500. Under subsection 499(1) the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is Direction No.65 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA which commenced on 23 December 2014 ("the Direction").

1. The applicant does not pass the character test in section 501(6) of the Act because of his criminal record (set out below), which meets the statutory definition of substantial criminal record in accordance with section 501(7)(c).

1. Paragraph 7 of the Direction sets out how the discretion is to be exercised. Informed by the principles in paragraph 6.3, I must take into account the considerations in Part C, in order to determine whether to revoke the mandatory cancellation of the applicant's visa.
2. Under the heading General Guidance (paragraph 6.2), the Direction provides in part:
   • (1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
3. In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion should be approached. These principles are:
   • (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
   • (2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
   • (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
   • (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
   • (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
   • (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
   • (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether a non-citizen's visa should be cancelled, or their visa application refused.
4. The Direction at paragraph 8 requires the decision-maker to take into account the primary and other considerations relevant to the individual case. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations.
5. The three primary considerations that the Tribunal must take into account are set out in paragraph 13(2) of the Direction as follows:
   • (a) Protection of the Australian community from criminal or other serious conduct;
   • (b) The best interests of minor children in Australia;
   • (c) Expectations of the Australian Community.

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

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

• (1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens...
  • (2) Decision-makers should also give consideration to:

1. The nature and seriousness of the non-citizen's conduct to date; and 2. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

(a) The nature and seriousness of the applicant's conduct to date

1. The applicant's criminal history in Australia is extensive, commencing in 2008 at age 17 and consists of assaulting and resisting police in the execution of duty, aggravated assault with intent to rob, robbery in company, aggravated break and enter, robbery, entering enclosed lands, licensing and driving related offences. The National Police Certificate dated 18 April 2017, and the New South Wales Police Force Criminal History - Bail Report created 11 January 2018, detail much of the applicant's criminal offending, which may be summarised as follows:

• Resist or hinder police officer in the execution of duty

• Use offensive language in/near public place/school

• Assault police officer in execution of duty W/O ABH

Offences proved s 25(2)

• Wilfully use offensive language on train/rail land/monorail

• Aggravated Break, Enter & Steal - in company (SI)

Imprisonment - 12 months, non-parole period 6 months

Imprisonment - 2 years, non-parole period 11 months

• Enter enclosed land not prescribed premises without lawful excuse

• Drive with middle range Prescribed Concentration of Alcohol (2nd offence)

• Never licensed person drive vehicle on road - prior offence

• Unlicensed for class, class cr, lr or mr (1st offence)

• Larceny (value > "It is apparent, therefore, that when the present offences were committed he was on probation for offences of assault with intent to rob and robbery in company. Those are circumstances which aggravate the present offences...

The present offences are objectively serious. For offences of this type, general deterrence and punishment are of particular importance. Personal deterrence is also of some importance. Additionally, the offences, as already noted, are aggravated by their commission whilst on probation for robbery type offences...

Despite the relative youth of the offender, the objective seriousness of the present offences requires nothing less than the imposition of full-time custodial sentences". [Emphasis added]

1. On 19 October 2011, the applicant was sentenced for one charge of robbery occurring on 17 October 2010. The agreed facts are detailed in the sentencing remarks of Acting Judge Graham. In summary, the applicant entered the carriage of a train and approached the victim, demanded the victim's money and phone while holding a clenched fist up to the victim and indicating, by that act, that he would assault him. The applicant verbally threatened violence and the victim handed him his mobile phone. It is noted in the sentencing remarks that the applicant left the train, but once he was on the platform he called out to the victim, asking if he wanted his SIM card back. The victim went onto the platform and the applicant gave him back the SIM card from his phone, shook the victim's hand and said "sorry". Acting Judge Graham noted that those assertions contained in the agreed facts were accurate. In regards to sentencing, Acting Judge Graham sentenced the applicant to an overall term of imprisonment of three years comprising a non-parole period of one year and made the following remarks:

"Clearly, objectively speaking, this is a case which, while a serious offence, particularly preying on persons travelling alone at night on public transport, does however fall towards the lower end of the scale of criminality, being an offence in which there was no actual physical violence, no touching of the victim, and the offence was, it is conceded, opportunistic rather than planned or organised. The victim was not physically injured nor is there any evidence of any substantial harm to the victim, nor was the property, particularly having regard to the return of the SIM card, significant in its value, in terms of the ultimate loss experienced by this victim.

The particularly disturbing part of the commission of this offence is that it was committed by a person on parole for an offence of the same type. This was an offence not out of character for the offender, as reference to his record has demonstrated. However, the court must in my view, still look with some care at the position of this offender. He is young, but there are signs that he is maturing. Without an alcohol abuse problem, indications are that he would be a person able to obtain employment and to live a law-abiding life in the community...

... General deterrence is an important aspect, as it is generally in relation to offences of robbery. There remains here a need for specific or personal deterrence of this offender given that, so far, the various orders made by courts have yielded little positive result. On the other hand, the sentence must make appropriate provision for a practical implementation of those steps required for the rehabilitation of this offender". [Emphasis added]

1. The seriousness of the applicant's conduct is reinforced by the sentences imposed on him (paragraph 13.1.1(1)(c)). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved. In the present case, the applicant has been sentenced to periods of imprisonment totalling 96 months (eight years)and 30 days as a result of his offences. Also, when considered as a whole, the repeated nature and trend of increasing seriousness of the applicant's offending, is very serious indeed (paragraph 13.1.1(1)(d) and (e)). The applicant has been convicted of at least 23 offences between 2008 and 2017 and has shown an escalation of offending from threatened violence, to actual violence.

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

1. In assessing whether the applicant represents an unacceptable risk of harm to the Australian community, regard must be had to paragraph 13.1.2 of the Direction, which provides that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Decision-makers must have regard, cumulatively, to: (a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and (b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant re-offending.
2. The nature of the harm to victims if the applicant were to reoffend in the future is very serious, and could involve significant physical harm to members of the Australian community. The applicant has shown that he is capable of causing significant physical injury to others, often by way of unprovoked physical assaults. The applicant has consistently engaged in acts of robbery, and recently in damaging property by force with intent to steal. In the circumstances, the potential harm to the Australian community posed by the applicant reoffending is significant and includes both property loss or damage, and, more significantly, psychological or physical harm. I also note the applicant's recent offending involved him grabbing the victim in a headlock and punching him in the eye.
3. Turning to the likelihood of reoffending, the applicant has an extensive criminal history, which dates back to 2008. Contrary to the applicant's assertions, there is a significant risk that he will reoffend. The applicant's offending has been sustained, and he has been undeterred by his court appearances and orders of the court.
4. At hearing the applicant was asked questions about his previous periods of incarceration and what effect, if any, these had on his behaviour. The applicant advised that previous periods of incarceration had an impact on him but not a significant impact. He described his reasons for offending in the past and said that he knew he was doing the wrong thing; but that doing the wrong thing was "cool". He said he wanted to be accepted by his peers and described a childhood where he often felt rejected and outcast by friends and family. The applicant described how his recent period in detention had altered his mindset and opened his mind to love and family. He said that he can now see the price he is paying for his previous behaviour and said he was now mature and "growing up". Despite his most recent conviction in early 2017, the applicant maintained that he had changed his mindset. He said that it had taken him a while because it was not easy to get his life back on track.
5. The applicant did his best at hearing to express how he felt about his situation. He also relied on an undated typed statement, in which he describes his reasons for breaking the law in the past, his remorse and his plans for the future. At hearing the applicant advised that he has recently reconnected with his family and hasn't had much time to show his appreciation for this. He said that if he went back to New Zealand he could stay in contact with his family via telephone but if something were to happen to his family, he didn't know what he would do. The applicant said that his father's health was not good and that his mother was not well enough to travel. He passionately described that he realises he has so much to miss out on and that he has a lot to lose. He said that despite living his life recklessly, he now realises that there is more important things in life to being a "gangster".
6. In regards to his alcohol abuse, the applicant claims that he has commenced numerous programs during his periods of incarceration; however he has not completed any courses because he was often "moved around". At hearing, the applicant said that during his recent detention he has been thinking back and reflecting on his past behaviour. He says he has now become a Christian and is reading the Bible often which has opened his mind to a "better way" of life. Despite the applicant's assertions, his rehabilitation has as yet been untested in the community.
7. While the applicant appeared to show insight into his offending I have little confidence in the applicant's claim that he is rehabilitated and will not reoffend. The applicant has been provided numerous opportunities over the years to turn his life around. As can be seen from a number of the sentencing remarks, periods of incarceration were imposed as deterrence, however these were unsuccessful. The applicant often reoffended while he was on parole.
8. It may very well be the case, that the reality of leaving Australia has finally made the applicant realise the error of his ways, however I give this little weight considering the fact that the applicant was notified by the Department in 2010 and again in 2012, that his continual criminal behaviour could result in the cancellation of his visa. At hearing, the applicant agreed that he received a notice in 2012 but disregarded the notice because he was "immature" and was in the "wrong mind frame".
9. However, I note that the applicant has previously expressed remorse for his offending and intentions to avoid criminal activity, and yet he has continued to engage in criminal behaviour. In a handwritten letter provided by the applicant to the Parramatta District Court for his court appearance on 25 June 2010, the applicant states:

"Dear Judge

Your [honour] this is my first time in adult custody. I'm 18 and I realise I've stuffed up my juvenile record. My little time in adult custody has been the worst experience in my life so far. Besides all my stress I've also learnt a lot off police, correctives and even inmates. I've been thinking about my future and I realise my mistakes. I'm still doing my year 10 course in Liverpool hoping to complete it. Inmates and correctives have been encouraging me to get out there and start fresh while I'm still young this experience in jail made me look at life in a whole different way including religion. Christianity is the key in my opinion, not all but most of my problems were my peers that I hang around and I will let go of all my friends. All I want is to go to my year 10 course finish at 4 PM go home and stay with my family. I'm sorry for everything I've done. I just want a fresh start on a positive future. Thanks."

1. Despite these expressions of remorse, the applicant continued to offend.
2. For all the above reasons, I am of the opinion that there is a significant risk that the applicant will engage in further criminal or other serious conduct of the nature of which he has been involved in the past; posing a significant risk of substantial harm to the Australian community. This is particularly so, because I am not convinced that he has addressed his alcohol abuse problem.
3. For the above reasons, applying the guidance in paragraphs 13.1.2(1) and (2) of the Direction, the protection of the Australian community weighs heavily in favour of not revoking the mandatory cancellation of the applicant's visa.

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

1. Paragraph 13.2(4) of Direction 65 sets out a number of factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person; the extent to which the person is likely to play a positive parental role in relation to the child; the likely effect that any separation from the person would have on the child; whether there are any other people who fulfil parental roles with the child; any known wishes of the child; and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person's actions.
2. The applicant does not have any biological children of his own. However he identifies five children under the age of 18 that may be affected by this decision.
3. I note that two of the children are that of the applicant's partner. However, at hearing, the applicant confirmed that he does not play the role of primary caregiver for the children and accepted that he has spent a significant amount of the children's lives incarcerated.
4. The respondent has conceded, and I accept, that this primary consideration weighs slightly in favour of the revocation of the cancellation decision. However, in the circumstances of the applicant's history of offending and the nature of his relationships with the children, I do not consider that this factor outweighs the other primary considerations.

PRIMARY CONSIDERATION (C) - EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

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.

1. In making the Direction, the Minister has made it clear that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (at paragraph 13.1(1)). The principles to be applied, as set out in paragraph 6.3, state that the right of a non-citizen to be able to come to or remain in Australia is a privilege conferred in the expectation that he or she is and will be law-abiding.
2. Clearly the applicant has not met the expectation that as a non-citizen he will obey the laws of this country. The applicant has repeatedly breached the trust of the Australian community by committing offences of a type that could endanger the safety of members of the community.
3. Relevantly, paragraph 13.3(1) of the Direction indicates that cancellation may be appropriate simply because the nature of the offences is such that the Australian community would expect that the person should not hold a visa. Given the nature and number of the applicant's offences, the Australian community would expect that the applicant should not hold a visa.
4. I acknowledge that in line with Principle 5 (paragraph 6.3) of the Direction, the Australian community may afford a higher level of tolerance of criminal or other serious conduct to the applicant as he has lived in Australia for over 10 years. However, given the nature of the applicant's offences, the applicant's long history of offending, and likelihood that he will commit further offences in the future, there is an unacceptable risk that he will continue to breach the trust of the Australian community in the future and the Australian community would expect that the applicant should not hold a visa.
5. This primary consideration weighs heavily in favour of non-revocation.

OTHER RELEVANT CONSIDERATIONS SET OUT IN DIRECTION NO. 65

1. Paragraph 14 of the Direction provides for other considerations relevant to deciding whether the cancellation of the applicant's visa should be revoked including the strength, nature and duration of his ties to Australia and the extent of impediments if the applicant were removed from Australia.
2. Other considerations such as international non-refoulement obligations, impact on victims and the impact on Australian business interests are not relevant considerations in these proceedings.

Strength, nature and duration of ties to Australia

1. Paragraph 14.2(1) of the Direction sets out two main factors to be considered in assessing the strength, nature and duration of a person's ties to Australia:
   1. How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

(i) less weight should be given where the person began offending soon after arriving in Australia; and

(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community; and

1. 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).

1. The applicant has resided in Australia for approximately 17 years, since the age of nine. The respondent accepts, and I agree, that the applicant has ties to Australia, to his family, partner and her children. I also accept the applicant has contributed to the Australian community through employment and charitable activity. This factor favours revocation. However, it is significantly outweighed by the primary considerations. This is particularly so as the applicant has continued to regularly and repeatedly commit criminal offences throughout his time living in Australia, right up until he was last taken into custody. In accordance with paragraph 14.2(1)(a)(i) of the Direction, less weight should be given to the time that the applicant has been living in Australia.

1. There is some evidence before me that the applicant has a mental health condition which affects his ability to obtain and retain employment. In any event, as a New Zealand citizen he would have access to a social welfare and a public health system, comparable to those of Australia, which would be available to him if he were to suffer any financial or medical hardship.
2. Additionally, there is no substantive language or cultural barrier to the applicant returning to New Zealand.
3. Accordingly, I do not consider that this factor outweighs the primary considerations favouring non-revocation.

1. For all of the above reasons, in particular the extent of the applicant's offending in Australia, the nature and seriousness of his offending, the expectations of the Australian community, and the risk of future harm, I am satisfied that the decision to not revoke the cancellation of the applicant's visa is the correct decision.
2. The decision under review is affirmed.

I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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