Convicted of take and drive motor vehicle, manner dangerous, unlicensed driver, drive stolen conveyance, take and drive conveyance, and unlicensed driver and committed to institution general terms.

Convicted of break and enter with intent, and sentenced to 12 months probation to be of good behaviour and accept supervision of the probation and parole service.

Convicted of assault occasioning actual bodily harm and sentenced to enter into self-recognisance to be of good behaviour for 12 months and to accept supervision of the probation and parole service.

Convicted of assault and malicious injury and sentenced to rising of the court and to pay compensation in the amount of $406.

Convicted of assault and rob and committed to an institution until 18 years old.

Convicted of unlicensed driver, fined $200 and disqualified from driving for 6 months.

Convicted of aid and abet being armed with intent to commit an indictable offence, break enter and steal, steal motor vehicle, and accessory after the fact discharge loaded firearm with intent.

Sentenced to a term of 3 years and 4 months in relation to each conviction (to be served concurrently) with a non-parole period of 2 years and 6 months.

Convicted of enter prescribed premises of any person without lawful excuse and fined $100.

Convicted of use unregistered vehicle on road area and fined $350.

Convicted use uninsured motor vehicle and fined $350.

Convicted of unlicensed for class - 2nd+ offence, fined $1000 and disqualified from driving for 12 months.

Convicted of use unregistered vehicle on road and fined $400.

Convicted of use uninsured motor vehicle and fined $400.

Convicted of drive while disqualified from holding a licence and sentenced to 4 months periodic detention and disqualified from driving until 20/02/2004.

Convicted of 3 counts of use unregistered vehicle on road and fined $300.

Convicted of 3 counts of use uninsured motor vehicle and fined $300.

Convicted of 2 counts of larceny value less than $2000, sentenced to 4 months periodic detention on each count and made to pay compensation in the amount of $500.

Convicted of 2 counts of drive while disqualified from holding a licence and sentenced to 4 months periodic detention.

Convicted of larceny and sentenced to 4 months imprisonment

Convicted of armed robbery with offensive weapon (occurring in 2003) and sentenced to 6 years imprisonment with a non-parole period of 4 years (concluding 17 January 2008).

1. On 30 November 1992, the applicant was warned that he risked deportation if convicted of any further offences. He acknowledged receipt of that warning on 1 December 1992 (G p38).
2. On 29 August 2007 the department sent the applicant a notice of intention to consider cancellation and on 19 January 2008 a delegate of the minister cancelled his visa under s 501(2) of the Migration Act 1958 (Cth) (the Act). He appealed to this tribunal for review of that decision on 11 February 2008.
3. As his application was made outside the nine-day time limit in s 500(6B) of the Act, the tribunal dismissed his application on the ground of lack of jurisdiction. In view of the Federal Court's decision in Pomare v Minister for Immigration and Citizenship [2005] FCA 458, the department renotified the applicant of the decision to cancel his visa on 8 May 2008. He then reapplied to the tribunal for review of the cancellation decision on 14 May 2008.
4. At the hearing, the applicant appeared in person, while Mr Avenish Chand represented the respondent. The documents before the tribunal comprised the documents produced pursuant to s 501G of the Act ("the G documents"), taken into evidence as Exhibit A1, together with the other documents tendered by the parties at the hearing. The applicant gave oral evidence in person and his daughter Charlene Te Rui Kohunui gave evidence by telephone.

1. As the applicant did not dispute that he did not pass the character test in s 501(6)(a) of the Act because of his substantial criminal record as defined in s 501(7) of the Act, the only issue for decision is whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant's visa, applying ministerial Direction No 21.

1. Under s 501(2) of the Act, the Minister may cancel a visa if the holder does not satisfy the Minister that the person passes the character test (s 501(2)(a) and (b)). The character test is set out in s 501(6), which provides that a person does not pass the character test if one of a number of grounds is met. The relevant ground in the current matter is paragraphs (a), as follows:

For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal record (as defined by subsection (7);

1. "Substantial criminal record " is defined in s 501(7)

(7) For the purposes of the character test, a person has a substantial criminal record if:

(c) the person has been sentenced to a term of imprisonment of 12 months or more; or

(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more;

1. Under s 499(1) of the Act, the Minister may give written directions to a person or body performing functions or exercising powers under the Act, with which, in accordance with s 499(2A), the person or body must comply. That includes this tribunal: Rokobatini v Minister for Immigration and Multicultural Affairs [1999] FCA 1238; (1999) 90 FCR 583. However, s 499(2) states that s 499(1) "does not empower the Minister to give directions that would be inconsistent with this Act or the regulations", but subject to that, for the persons and bodies to whom it is addressed (including this tribunal), such a direction has the force of law.
2. On 23 August 2001, the Minister, exercising his powers under s 499(1) of the Act, issued Direction No 21, Visa Refusal and Cancellation under s 501. The preamble to the direction states that it "provides guidance to decision-makers in making decisions to refuse or cancel a visa under section 501" of the Act. The direction provides guidance on application of the character test and on the considerations to which decision-makers must have regard when, notwithstanding that a person does not pass the character test, exercising the discretion to decide whether or not the non-citizen should be permitted to enter or remain in Australia.

1. At the hearing the applicant adopted his statement apparently made on 9 July 2008 (Exhibit A2). In it he said he knew he had done some very stupid things and was not proud of it, but since being incarcerated between 2002 and 2008, he had rehabilitated himself immensely. Drugs and alcohol were a major factor in his life but he no longer drinks and definitely takes no drugs. The time he spent in jail made him reflect on all his mistakes and to think what he had put his family through.
2. He did not want his son or any of his friends going down the same road as he had. He had taken a few boys off the street for at least two to six hours a day to do weight training and engage in similar activities. He took a few of them into his house to live, as they had troubled homes. His efforts were successful in all cases except one.
3. He was annoyed when he was apprehended by the department in January 2008, as he believed that he had changed for the better.
4. He knew he had taken his family "to hell and back again", but now all he wanted was that they should be back together as a family, with the addition of his new granddaughter Karmel. His de facto suffered a nervous breakdown that required treatment in a psychiatric hospital. She recovered, but was in their care for about six weeks. She is really well now.
5. He would no longer mix with his former friends or the people he had met while incarcerated. He took pride in being clean of drugs and alcohol.
6. If deported, he has no family in New Zealand as they are all here in Australia. He would never again be on the wrong side of the law and his time would be devoted to his family and to work. He has qualifications that would obtain him employment on any work site in Australia.
7. In cross-examination, the applicant said that for the week before the offence of armed robbery for which he was convicted on 1 March 2005, he had been consuming a cocktail of ecstasy, cocaine, marijuana and alcohol. Before that he had not used drugs or alcohol for between four and five years (transcript (ts) p3). He had obtained the drugs from a dealer he had known for years for about $700, and consumed them with four friends.
8. Previously he had ceased using drugs and alcohol because he had observed the effects they had on a friend who was under their influence. He obtained counselling in jail because otherwise he would have to pay for treatment at clinics. He undertook relapse prevention, drugs and alcohol, and anger management courses.
9. The last time he consumed alcohol was before he was imprisoned. It is possible to obtain drugs and alcohol while in prison, although they are harder to obtain than outside. The last occasion on which he consumed drugs was 2006 (ts p4). At that time he had been halfway through a relapse prevention course but returned to marijuana because of the stress of not being employed for almost a year. He had not sought stress relief by other means because drugs and alcohol were the only thing that comforted him at the time.
10. While most of his crimes were committed under the influence of alcohol and drugs, he did not claim that they were the factor that caused him to offend. It was stress that led him to crime. He admitted that, having first offended in Australia in 1983, he had thus apparently been under stress for a long time.
11. He agreed that he was formally warned that his visa might be cancelled if he re-offended, and that he had in fact re-offended after being released from prison. He said there was no excuse for his re-offending, but added that they were mostly traffic offences and not violent. He had, however, been convicted of larceny in 2003.
12. His children had visited him nearly every week in Villawood and previously in jail. The last contact was yesterday [14 July 2008], when they visited him at Villawood. There had been no contact for two years while he was at Grafton, however, because of accessibility problems. He agreed that his periods of imprisonment had disrupted their lives and that he was not the best role model.
13. He has a brother in New Zealand who he has not seen for 30 years, and they do not acknowledge each other at all. He has returned to New Zealand three or four times but has no friends there.
14. He fears for his life in New Zealand because of a confrontation he had with the Black Power gang in 1982. He had damaged their clubhouse in revenge for an attack on one of his cousins, and they said they were out to kill him. In the eight months he had remained in New Zealand before coming to Australia, there had been no incidents or threats, but he thought that was because he had at that time been a ward of the state and they could not find him. He had not told the New Zealand police of the threats, and had no reason to think they would not protect him.
15. When he returned to New Zealand for a visit in 1997, two carloads of presumed Black Power members drove up to where he was staying at the time and called out to him to "come out here you old dag" (ts p9). He had not been harmed and subsequently had moved to Wellington where they could not find him.
16. If he were to return to New Zealand he was not sure if the police would protect him. "What's the police going to do against a gang?", he asked (ts p10).

1. In her oral evidence by telephone, the applicant's daughter Charlene Te Rui Kohunui adopted her statement of 24 June 2008 (Exhibit A3). In it she acknowledged her father's criminal record but said he had changed for the better. When he was released on 17 January 2008, she was waiting for him at the front gates of Long Bay jail, having waited for him for five years. It had been a joyful occasion.
2. Her father had always gone out of his way to help people, especially broken families and the younger boys who frequented the streets of the Campbelltown district and always seemed to be getting into trouble. He began to train a few of them, although it imposed some strain on their family to help so many of them and spend time feeding and housing them.
3. As many of the boys were afraid to return home at night, her father would allow them to stay overnight. "I remember getting annoyed with the amount of boys that were over home for training so I had asked my dad why does he have so many here and he had explained to me that the more he has here the less trouble out there, because they would train 2-4 hours a day six days a week on the bag and weights, then an afternoon jog, like how he trained me".
4. She wanted the best for her daughter Karmel, but could not return to New Zealand because she expected she would be charged with kidnapping (she did not say why) and she does not think there would be opportunities there for her. She did not want her father to be deported because she wanted her daughter to develop a relationship with him so that at least she would know one of her grandparents on her mother's side of the family.
5. The applicant's father Mr Thomas Bishop Metera, in a letter dated 1 July 2008 (Exhibit A4), said his son had told him how deeply sorry he was about the circumstances he had put himself in through drug use. He understands that the applicant has been rehabilitated and is completely clean of drugs.
6. Mr Metera senior said that the applicant is a devoted husband and father. "His partner of over 20 years, Mere Kohonui [sic], has been through a lot in looking after the children without the support of their father", however.
7. Unfortunately, through stress, depression and lack of money and support, Mere was admitted to Campbelltown hospital for rehabilitation concerning her state of mind. During that period her mother came from New Zealand to take care of the children.
8. In Mr Metera senior's view, it would be in the best interests of all involved that he be allowed to remain with his partner and children by staying in Australia.
9. The applicant's de facto spouse Mere Kohunui gave no oral evidence and did not supply a written statement or letter. The absence of any evidence from her was not explained. It could not have been because she was undergoing in-patient psychiatric treatment as the applicant suggested, for according to the applicant's statement she had been discharged and had made a complete recovery.
10. It appears, however, that she contacted the department by telephone on 27 July 1992 at the time the applicant was considered for deportation but was eventually given a warning (G pp92-93). She confirmed that she had (at that time) known the applicant for the past seven years. She is a New Zealand citizen who has lived in Australia since 1979. She has two younger sisters in New Zealand.
11. Ms Kohunui had said she was confident that they could make a fresh start after his release and thought he had the prospect of employment as a forklift driver through his uncle. She would be opposed to his deportation. She did not think she would be able to accompany him to New Zealand, as her sisters there were only aged about 18 and she had no other family to whom to look for support. Employment would also be difficult. At that time the applicant said that they had agreed to marry once he was released from prison and in employment (G p101).
12. A departmental case officer contacted Ms Kohunui by telephone on 23 October 2007 to discuss the family situation further. Ms Kohunui had confirmed that four of her children and Charlene's daughter were all living with her and it was intended that the applicant return there on his release (G p180).
13. She confirmed that her youngest child, Te Aroha, lives with her cousins, who have guardianship but have not formally adopted her.
14. At the conclusion of the evidence the applicant declined to make any submissions.

1. As was stated above, usually the first issue for me to decide is whether, pursuant to s 501(6)(a) and (7), the applicant passes the character test having regard to his substantial criminal record.
2. In this case the applicant does not dispute that he does not pass the character test because of his "substantial criminal record" within s 501(7).
3. I must therefore consider whether to exercise my discretion under s 501(2) to decide whether to cancel the applicant's visa. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

Decision-makers must have due regard to the importance placed by the Government on the three primary considerations, but should also adopt a balancing process which takes into account all relevant considerations.

1. Paragraph 2.3 sets out the primary considerations:

In making a decision whether to refuse or cancel a visa, there are three primary considerations:

(a) the protection of the Australian community, and members of the community;

(b) the expectations of the Australian community; and

(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.

The Government seeks to take reasonable steps to protect the Australian community from the actions of criminals and to take action to lessen the risk of crime and disorder within the Australian community.

1. Examples of what the government views as serious offences are set out in paragraph 2.6. This includes, in subparagraph (e), armed robbery, and in (f), crimes of violence against persons. Paragraph 2.8 requires decision-makers, when exercising this discretion, to take into account any relevant factors provided by the non-citizen as mitigating factors.
2. With regard to paragraph 2.5(b), likelihood that the conduct may be repeated (including any risk of recidivism), the extent of rehabilitation is a relevant factor in making an assessment, and paragraph 2.11, general deterrence, "aims to deter other people from committing the same or a similar offence".

1. The first issue to be discussed under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(e) that armed robbery, and paragraph 2.6(f) crimes of violence against persons, are to be treated as very serious. The applicant has appeared many times in the criminal courts, starting in June 1983 in New Zealand and continuing shortly after his arrival in Australia in 1983. His offences escalated in seriousness until on 23 April 1992 he was convicted of being an accessory after the fact to maliciously shooting at three police officers with intent to prevent the lawful apprehension of an offender, aiding and abetting another armed with an offensive weapon with intent to commit armed robbery, breaking, entering and stealing, and car stealing.
2. Flannery J described it as "a tragic case" (G p113). One of a number of bullets fired from an assault rifle at a pursuing police car inflicted injuries on the three police occupants, causing one officer to be permanently blinded in one eye. The applicant fired no shots himself and in fact unloaded one of the weapons in the car to ensure that it would not be used. About 10 days after the offence, he surrendered himself because he had heard about a police shooting of a criminal at Glebe and he did not want it to happen to him (G p116). He was sentenced to a term of three years and four months in relation to each conviction, to be served concurrently, with a non-parole period of two years and six months.
3. Further convictions accumulated until on 1 March 2005 he was convicted of armed robbery with an offensive weapon (a serrated knife) and sentenced to six years' imprisonment with a non-parole period of four years. The victim was a 65 year-old woman who was robbed of a cash payroll in the amount of $8,000. The applicant's co-offender grabbed her around the throat and held the knife to her throat, then punched her in the head, causing her to fall to the ground.
4. Marien J described the offence, which occurred in November 2003, as "extremely serious" and noted that it had had "serious psychological effects" on the victim (G p73-74). At the time of that conviction he was serving a four-month sentence for larceny and was then sentenced to six years' imprisonment with a non-parole period of four years, concluding on 17 January 2008. His other offences include assault and malicious injury, goods in custody and a succession of traffic-related matters.
5. The tribunal is also to take into account any relevant factors provided by the applicant as mitigating factors (para 2.8(a)). They should be viewed in the context of the applicant's entire record (Green v Minister for Immigration and Citizenship [2008] FCA 125 [25]-[26]). The applicant told Marien J that he had been abusing heroin, cannabis, amphetamines and alcohol on a daily basis during the three weeks preceding the 2003 offence (G p76). At the hearing of the present application, he said he had had a drugs and alcohol problem but it had not been the cause of his criminal activities. He had offended because of stress, he said, but did not elaborate. No other mitigating factors were advanced. The applicant's pattern of criminal conduct since 1983 must clearly be regarded as very serious.
6. The next issue for the tribunal to consider is the risk of recidivism. As President Mathews J said, "Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending" (Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51]).
7. On the basis of his criminal history since 1983, he was considered for deportation in 1992, but instead received a warning that any future breaches of the law would result in his case being reconsidered. At that time he claimed to have undergone a change of attitude caused by disgust at his history of criminal convictions. He had participated in drug and alcohol counselling and other relevant and useful courses. His prisoner assessment was positive and indicated that he was an above average worker (G p99).
8. Ms Kohunui told the department at the time that she was confident that he could make a fresh start after his release (G p93). His mother said that she hoped her son had learned his lesson now that he was a grown man with two children to look after (G p94).
9. Nevertheless, he had relapsed. At the hearing he conceded that he had re-offended, but countered that his offences were mostly traffic matters not involving violence. But his later sentences include four months' imprisonment for larceny, a fine for common assault and, of course, the six years' imprisonment he received for armed robbery with an offensive weapon on 1 March 2005.
10. He also made light of his traffic-related convictions, but a person whose driving results in three separate periods of disqualification, repeated fines and three sentences of four months' periodic detention (concurrent) is someone from whom the community needs protection on that ground alone.
11. During his most recent term of imprisonment he failed urine tests in January, March and June 2006 (G p186), the analyses all involving the use of cannabis. He said at the hearing he had not used any drugs since 2006. His attention was drawn to this passage in the probation and parole service report prepared for the department on 31 October 2007 (G p187):

Of concern is that the Justice Health file contained a number of references which infer that Mr Metera has possibly been involved in intravenous drug use during his incarceration. On 14 February 2007, the inmate attended Primary Health and "admitted to sharing needles". On 2 July 2007, it was noted that Mr Metera stated his "last risk was in early April 2007". Again on 9 October 2007, the file revealed the comment "continues to risk take. Appreciates risks. States very careful with bleach/H20". In discussion, Mr Metera denied intravenous drug use in custody, claiming that he had made these remarks to Justice Health staff in order to obtain regular HIV/Hep C testing.

1. At the hearing he repeated the explanation that he had made those remarks because they were the only way in which he could obtain testing for hepatitis C, which he wanted because before his incarceration he had shared needles (ts p10). Even if one accepts that explanation, it hardly accounts for the fact that he made such admissions on three separate occasions months apart. Further, the comments, including such details as the reference to bleach, have a degree of specificity suggesting they related to current conduct.
2. There is no reason to doubt his account of his efforts to occupy some of the youths of the Campbelltown area with activities that would keep them out of trouble (possibly at the expense of his family - see Exhibit A3), but even if his convictions for assault and larceny between 2001 and 2003 antedated those activities, his later conduct while in prison did not indicate comprehensive rehabilitation. I have already referred to his use of marijuana and probably intravenously injected drugs while in prison in 2006 and 2007. The report also notes that while he received mostly favourable work reports in custody, his employment in one position was terminated as a result of his standing over a young inmate and his participation in the art course was terminated in October 2007 as a result of his patchy participation (G p188).
3. On the basis of standardised tests, the report assessed the applicant as being within the medium to high risk category for general re-offending (G p188). I accept that assessment and in that context note the tribunal's comments in Re Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81 at N132 - N133, also a deportation matter:

The seriousness of the crime is an important consideration. The more serious the offence the greater the affront there has been to the community and the greater the necessity there is to preclude recidivism.

... even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm. ...

1. Repetition of the applicant's violent offences would clearly cause great harm to members of the community and the risk of repeated offending conduct supports visa cancellation.
2. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11.
3. The reference to general deterrence in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results. While visa cancellation is not intended as a punishment, para 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.
4. As Callinan J observed in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at 659, "Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort".
5. While general deterrence cannot be a decisive, or even a substantial, factor in deciding an application such as this, the possible effect that cancelling the applicant's visa might have in preventing similar conduct by other non-citizens should be taken into account.

1. With regard to the second primary consideration, the expectations of the Australian community, paragraph 2.12 of Direction No 21 states in part that:

Visa refusal or cancellation ... may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia.

1. In Al-Kateb, Hayne J observed that in one of its earliest decisions (Robtelmes v Brenan [1906] HCA 58; (1906) 4 CLR 395), the High Court had held that it is an attribute of sovereignty that every nation state is entitled to decide what aliens shall or shall not become members of its community (219 CLR at page 632).
2. Callinan J added that entering aliens are taken to know and accept "as a term of admission" that restraint to the extent necessary to enable deportation can be imposed on them (at p658).
3. At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]). A further limiting factor is that one should attribute to the community knowledge of the whole of the evidence before the tribunal (Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458, at para 7(m)).
4. Most Australians would make some allowance for the fact that the applicant has lived in Australia for 24 years and has important family ties here. But in my view the community would on balance expect that the visa of a person with such a serious and sustained criminal record, who has been warned of possible deportation but re-offended, who is assessed at being at medium to high risk of re-offending and who shows little clear evidence of lasting rehabilitation, should be cancelled.

1. The third primary consideration is the best interests of the child. The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs [1998] FCA 5; (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second, "to assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration". I also note paragraph 2.16 of Direction No 21, which sets out considerations that the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).
2. The applicant has five children, all born in Australia and presumably Australian citizens. The two eldest are over 18, but Jocelyn and Anzia are aged nine and seven (nearly eight) respectively. The youngest, Te Aroha, aged six, is living with Ms Kohunui's cousins. The applicant says they have legally adopted her, but Ms Kohunui says they have guardianship of her but have not legally adopted her (G p29). It is not necessary for present purposes to resolve that conflict. The applicant's eldest daughter Charlene now also has a child of her own who also lives with Ms Kohunui.
3. The applicant apparently also indicated to the department that his father had recently had another child. He did not mention her in his evidence and there is no other evidence of any relationship between him and his father's daughter.
4. There is no reason to doubt that he has an ongoing relationship with his three youngest children and his granddaughter Karmel. He agreed, however, that his periods in jail had disrupted their lives and that he had not been the best role model. His father noted that Ms Kohunui had "been through a lot in looking after the children without the support of their father" (Exhibit A4). Charlene referred to the hardship of having to wait five years until last January for her father's release from prison.
5. As Mr Chand pointed out, if the applicant re-offends - and he has been assessed as at a medium to high risk of so doing - he will cause further hardship to his children. Further, if Ms Kohunui (who is a New Zealand citizen) and the children decided to move to New Zealand, the children would be moving to a country with no language problems for them, a similar culture and similar education, health and welfare systems: Re Agafili and Minister for Immigration and Multicultural Affairs [2001] AATA 91 at [91]; Re Takau and Minister for Immigration and Citizenship [2007] AATA 1575 at [72]; Re Kelly and Minister for Immigration and Citizenship [2007] AATA 1678 at [126]. The applicant himself would be removed from the influence of friends and associates who he said were an influence on his offending behaviour.
6. When the applicant was considered for deportation in 1992, Ms Kohunui did not think she would be able to accompany him to New Zealand as her sisters there were aged only 18 and she had no other family to whom to look for support. Her sisters would by now be in their 30s. In the telephone conversation with the case officer on 23 October 2007 (G p180), Ms Kohunui said nothing about her intentions in the event that the applicant were removed to New Zealand. The applicant in his evidence did not indicate that there would be any problem if she and the children moved to New Zealand, his expressed concerns relating only to his own safety by reason of his 1982 confrontation with the Black Power gang. Nevertheless, one cannot assume that Ms Kohunui and the children would move to New Zealand, and to that extent the children's best interests weigh against visa cancellation.

1. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, "it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations". These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen's family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen's character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen's family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
2. The applicant has no business or similar ties to the Australian community. His de facto spouse (a New Zealand citizen), five children, one grandchild, three sisters and a number of members of his extended family reside in Australia. They would be likely to suffer some emotional hardship if his visa were cancelled He has, however, been physically separated from them since 2002 as a result of his criminal activity. He has one brother in New Zealand, who he says he has not seen for 30 years.
3. He has been in a de facto relationship with Ms Kohunui for over 20 years. There is no reason to doubt that Ms Kohunui has been aware of the applicant's criminal history since their relationship began.
4. There is some evidence of rehabilitation. The applicant has undertaken a number of rehabilitation and occupational courses while in prison. His efforts on behalf of the vulnerable youth of Campbelltown are to his credit. It is difficult to assess the extent and stability of his rehabilitation, however, as he has been incarcerated since 2002. He failed three urine tests for cannabis in 2006 and was probably using intravenous drugs in prison in 2007. The assessment that he is at medium to high risk of re-offending appears to be correct.
5. Importantly, he was considered for deportation in 1992. No action was taken, but the department in its letter of 30 November 1992 (G p37) stated that:

Nevertheless you are warned that any further conviction will lead to the question of your deportation being reconsidered by the Minister or his delegate.

Disregard of this warning will weigh heavily against you if the Minister or his delegate reconsiders your case.

1. The applicant acknowledged receipt of that letter in writing (G p38). Nevertheless, he went on to re-offend, and committed his most serious offences after that warning.
2. A possible issue of compassionate consideration is raised by his claim that because in 1982 he assisted in damaging the clubhouse of the Black Power gang, he fears for his safety if he were to return to New Zealand. There is, however, no evidence that he is being sought by the gang or that after 26 years they are still seeking retribution. He returned to New Zealand for visits in 1997 and in 1999 without suffering any harm. He said that in 1997 a group of them drove to the house where he was staying and called out to him to "come out here you old dag", but did not suggest they said or did anything else. Nor, apparently, did anything happen during his 1999 visit. Nevertheless, he thought the New Zealand police could or would do nothing against a gang (ts p10).
3. It may well be that the police have no affirmative legal duty to protect particular individuals: South v Maryland (1856) 59 US (18 How.) 396, 403; Warren v District of Columbia (1981) 444 A.2d. 1, 3; cf R v Chief Constable of Devon and Cornwall; ex parte Central Electricity Generating Board [1982] 1 QB 458, 472 (Denning MR). They do, however, have a duty to restrain breaches of the peace committed or threatened in their presence: Albert v Lavin [1982] AC 546, 565; R v Commissioner of Police for Tasmania; ex parte Broken Hill South Ltd (1992) 34 AILR para 309.
4. At all events, there is no reason to doubt that the applicant could seek police protection if he felt himself in danger, nor any reason to think the police would ignore such a request, subject to their other commitments.
5. In this case the best interests of the children weigh against cancelling the applicant's visa. But while a child's best interests are a primary consideration, they can be outweighed by other primary considerations and have been in a number of instances: eg, Re Ruano and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1240 at para 129; Re Hadchiti and Minister for Immigration and Multicultural Affairs [2002] AATA 65 at para 33; Re Barattini and Minister for Immigration and Multicultural and Indigenous Affairs [2005] AATA 157 at para 34.
6. After fully considering the evidence before the tribunal, I conclude that the strength of community protection and expectations outweighs the best interests of the children in this case. The other considerations are generally given less weight than the primary ones and in this case they are also outweighed by the two primary considerations mentioned. The discretion should be exercised in favour of cancelling the applicant's visa.
7. The decision under review is affirmed.

I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President

Signed: ........................[sgd]..................................