1. The applicant was born in 1968. He is a citizen of New Zealand and first arrived in Australia on 21 July 1991, aged 23. He has left Australia on four occasions for brief periods. He arrived most recently on 12 April 2012.
2. In 2005 the applicant suffered a workplace injury. He has been receiving the Disability Support Pension and is not employed full-time but does casual work that suits his physical limitations.
3. The visa cancellation decision arose from the applicant's conviction in Bega Local Court on 17 February 2015 for two offences: Common Assault and Armed With Intent to Commit Indictable Offence. He was sentenced to imprisonment for 12 months for each charge to be served concurrently commencing on 23 December 2014. He was released from prison on 22 June 2015.

Decision not to revoke the cancellation decision

1. When the Minister makes a decision to cancel a person's visa under s.501(3A), the person must be given a written notice setting out that decision, particulars of relevant information as defined, and be invited to make representations within the period and manner ascertained according to the regulations (s.501CA(3)).
2. Section 501CA(4) provides that:

The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(b) the Minister is satisfied:

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

1. The applicant made representations and provided several references in support of his representations but the delegate decided not to revoke the decision because the delegate found that the applicant did not pass the character test and the delegate was not satisfied that there was another reason why the original decision should be revoked.

1. The documentary evidence before the Tribunal included the T documents, which includes the applicant's representations made in accordance with the invitation, two additional references supporting the applicant, two documents relating to the incorporation of a company related to two of the referees, a print-out of the police record of "events involving" the applicant, copies of two reports of incidents at Villawood detention centre, and a copy of the NSW Department of Corrective Services Case Note Report relating to the applicant. The Tribunal also heard oral evidence from the applicant, one of his sisters, his niece, his former landlady, two female friends, a former neighbour, and the mother of his son.

1. At the hearing, the applicant claimed that his sentence relating to his 2015 conviction had been reduced on appeal from nine months to five months and he was released three days later. The NSW Department of Corrective Services Conviction Sentences and Appeal document dated 17 June 2015 (T19 page 211) shows that he did appeal and there was a video hearing, as he claimed, on 17 June 2015. He was released on 22 June 2015. It also shows that his non-parole period was reduced on appeal to six months. Although not clear from that document, page 27 of Attachment 1 to the respondent's Statement of Facts and Contentions shows that originally the applicant's non-parole period was nine months, which is consistent with the applicant's evidence that his original release date was 22 September 2015. His evidence that he went to gaol in October 2014, left gaol on 9 December 2014 and was on bail until 17 February 2015 and then went back to gaol is generally consistent with serving six months gaol in total. The applicant said that he has never served a 12 month gaol term. That is correct but that is not the statutory criterion in issue. (See s.501(7)(c) referred to above)
2. Contrary to the applicant's claim, while his non-parole period was reduced on appeal, his sentences were unchanged.
3. It is relevant to those findings that the applicant has an alias. Police records for the alias show several entries. I have taken into account his evidence about that matter, but do not accept it because it was contradictory, evasive and not consistent with the police records in Attachment 1. For example, he claimed that he only used the alias in 1992, and that the photograph of him contained in police records for the alias, clearly marked as having been taken in 2008, was taken in 1992.
4. I find that the applicant was sentenced in Bega Local Court on 17 February 2015 to 12 months' imprisonment for each of the two convictions. The sentences were not reduced on appeal. He has a substantial criminal record as defined in s.501(7)(c) of the Act. He therefore does not pass the character test as defined in s.501(6)(a) of the Act.
5. It is therefore necessary to consider whether I am satisfied that there is another reason why the mandatory visa cancellation decision should be revoked.

Direction under section 499

1. The Minister has given a direction under s.499 of the Act, Direction No. 65, Visa refusal and cancellation under s.501 and revocation of mandatory cancellation of a visa under s.501CA (the Direction). The direction commenced on 23 December 2014.
2. Relevant to this decision, are the Preamble, Part C, Annex A and Annex B of Direction No. 65.
3. The Preamble in the Direction:

Contains the Objectives of this Direction, General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion ... to revoke a mandatory cancellation under section 501CA.

1. The discretion to consider revocation of the decision to cancel the visa has been enlivened by the applicant's request that the cancellation decision be revoked. Therefore I must consider whether to revoke the cancellation given the specific circumstances of the case (the Preamble and paragraph 13(1) of the Direction).
2. The Preamble states that the objective of the Act is to regulate, in the national interest, the coming into, and presence in Australia of non-citizens and specifies seven principles which provide a framework within which decision-makers should approach their specific task:

(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 that non-citizen's visa should be cancelled, or their visa application refused.

1. Relevantly, section 2 of the Preamble provides that the decision-maker must take into account the considerations in Part C which identifies the primary and other considerations in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. Part C also provides guidance about how to take into account those considerations, information and evidence.
2. Paragraph 8 of the Direction states:

...

(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

(4) Primary considerations should generally be given greater weight than the other considerations.

(5) One or more primary considerations may outweigh other primary considerations.

1. In deciding whether to revoke the mandatory cancellation of the applicant's visa, the following are primary considerations (paragraph 13(2) of the Direction):

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.

1. The Direction provides detailed guidance in relation to each of those considerations.
2. At paragraph 14, the Direction provides that other considerations must be taken into account in deciding whether to revoke the mandatory cancellation of a visa "where relevant" and specifies some considerations without limiting the considerations that may be taken into account.

Primary consideration 1 - the protection of the Australian community from criminal or other serious conduct

1. In addition to the 2015 convictions, the applicant has the following criminal record in Australia:

Narooma 8 March 2012 Common Assault Convicted.

Local Court Fined $1,000

Tweed Heads 28 May 2007 Fail to appear in On each charge:

Local Court Accordance with Bail Convicted.

Undertaking (2 charges) Released on Bond

for 18 months

Common Assault

Assault Occasioning

Actual Bodily Harm

Tweed Heads 07 February 2006 Armed With Intent to On each charge:

Local Court To Commit Indictable Imprisonment for 12

Offence months. Sentence

suspended on

entering Bond for

12 months.

Contravene Apprehended

Violence Order

Cultivate Prohibited Plant Convicted.

Fined $2,000

Brisbane 07 March 2000 Common assault Convicted.

Magistrates Fined $200

Court

Wilful damage Convicted.

Fined $200.

Pay restitution

$504.75

Maryborough 05 August 1994 Breach Bail Act Convicted. No

Magistrates (Contempt) further penalty

Court imposed

Behave in an indecent On all charges:

Manner Without conviction.

Released on

Assault Police entering recognizance

(2 charges) self $100 to be of good behaviour

Obstruct Police for 3 months.

Maryborough 10 June 1994 Breach Bail Undertaking Without Magistrates

Court conviction.

Fined $50. Fine

Option order to

Perform 10 hours

Community service.

Brisbane 13 October 1993 Insulting words Convicted.

Magistrates Fined $30.

Court

Byron Bay 05 Aug 1993 Drive with Low Range Convicted.

Local Court of Prescribed Concentration Fined $600.

of Alcohol Licence disqualified

for 3 months.

Unregistered driver On each charge:

Uninsured driver Convicted.

Fined $300

Plates Calculated On each charge:

To deceive Convicted.

Fined $200

Unlicensed .

Brisbane 11 May 1993 Assault Occasioning Without conviction.

District Bodily Harm Fined $800

Court

Wilful and unlawful Without conviction.

Damage to Property Fined $150.

Pay compensation

$585.80.

Inala 16 February 1993 Possession of Thing used Convicted.

Magistrates in Connection with Smoking Fined $100

Dangerous Drug

1. The applicant said that he does not have an extensive criminal record and will never reoffend, after the hearing he has gone through. He claimed that he "probably lost the plot" the last time because he should not have given money to the people who he was convicted of assaulting. The applicant said that he goes out of his way to help people.
2. During cross-examination, the applicant gave the following evidence about the above offences.
3. The applicant remembers his first criminal offence in 1992 "real well". He won that case. He had been in Australia for one year. He denied that the offence was for assaulting and resisting police. He claimed that he was arrested for drunk and disorderly. He had just got out of hospital and he proved that in court. He accepted that the charges were proved.
4. He admitted that he had committed the six offences in 1993 and 1994. He said that he was new to the system here. He claimed that he was charged with attempted murder in company but beat the charges which were downgraded.
5. The applicant said that the 7 November 2000 common assault matter was not serious.
6. The applicant said that the conviction for the "armed with intent to commit indictable offence" of 7 February 2006 was a family affair between him and his uncle and auntie and three of his cousins. They were living in his house because he was away working. He gave evidence that he did not want his cousins living there because they were junkies and were growing dope in his back yard. His aunt and uncle are from the Cook Islands and they did not know what it was, but he knew. He was charged. He said he was not responsible for cultivating a prohibited plant. He told the judge that where he comes from, the Cook Islands, family affairs are sorted out within the family. You are armed with a baseball bat and hunting knife. It is part of their culture. They hunt, fish, dive, and grow their own food.
7. He went to gaol in Grafton for two weeks and was given a good behaviour bond. He made a call home to his uncle. When he went back to the premises, they had stolen everything. Because he made the phone call, he had breached his bail conditions. He went back to gaol in Grafton for another two weeks until a friend, Debbie Lawrence, said he could go and stay with her.
8. The applicant gave the following account in relation to the common assault offence of which he was convicted on 8 March 2012. He was working on a bridge on a highway on the south coast of New South Wales. He got a lift into town during his lunch break. The applicant explained that four Aborigines approached him and asked him for money. One said that he had just got out of gaol and was doing it hard. The applicant gave them money. They were all laughing at the applicant. He was fined $1,000 for not showing up to court. He was working on the highway and living with his employer. There was no way of getting to court. Police officers came and he explained that he had only just got the job after coming down from Queensland. They understood. The police account stated that the applicant punched the victim once in the face.
9. The applicant said that there was no violence involved in the October 2014 offences for which he was convicted on 17 February 2015. He did not touch the guy but "his missus" accused the applicant. He believes he was wrongly convicted. They made it all up. They described a meat cleaver with a 20 mm blade. The original charges were break and enter, robbery and assault, and armed with a meat cleaver. He could not believe it when he was arrested. The applicant went to see the man. He proved that the victims did owe him money.
10. Clause 13.1(1) of the Direction provides:

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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

1. Clause 13.1(2) provides that decision-makers "should also give consideration to:

a) The nature and seriousness of the non-citizen's conduct to date; and

b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct".

1. Clause 13.1.1 sets out a non-exhaustive list of factors a decision-maker must have regard to when considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date.
2. I find that the applicant has been convicted of 12 offences involving violence since he arrived in Australia. Those offences were committed in 2014, 2012, 2007, 2006, 2000, 1994, 1993 and 1992. Two of the convictions were for the offence of armed with intent to commit indictable offence (2015 and 2006). Four of the offences were assault police (1994 and 1992). I consider all those offences to be serious. I have taken into account the sentences imposed in relation to those offences. In particular, I take into account the prison sentences imposed in 2015 and the suspended sentences imposed in 2006. While there have been periods when the applicant has not been convicted for an offence, from 1994 to 2000, from 2000 to 2006, from 2007 to 2012 and from 2012 until 2015, it is significant that most recently the period between convictions is less than previously. The applicant has a pattern over the years of committing violent offences. The most recent offences are the most serious. The applicant downplayed the seriousness of the offences he has committed. The convictions and sentences reflect the seriousness with which the sentencing magistrate regarded the various offences as proved in court.
3. While the transcript of the 17 February 2015 court proceeding is consistent with the applicant's claim that the victims owed him money, the magistrate's sentencing remarks demonstrate that the magistrate did not accept that the incident was as the applicant described at the Tribunal hearing:

Your record of interview is in effect what condemns you today. You made a number of admissions in there in relation to having the mallet, of having it for a reason, that reason was to scare them. You come to court today and you give a version which is just fantasy.

My job is to help people feel safe in their homes and from the police statements both of these victims were extremely shaken as a result of your behaviour. They were visibly shaking when police arrived. Indeed Ms E [name omitted] today had trouble controlling her emotions in the witness box as she was forced to relive the events of that night.

1. At the hearing, the respondent's representative asked the applicant about two incidents that have occurred since 23 June 2015 when he entered immigration detention.
2. The report of the incident dated 4 November 2015 states that it occurred in the IHMS medical centre at 12:15 and describes the incident:

Client aggressive and abusive in the IHMS waiting room. Client throwing VIDC desk phone at plexiglass screen to med rover's room and throwing items and hitting walls. All other clients waiting room removed from situation and SERCO officers in attendance

1. The applicant gave the following account of that incident. He lost his temper and threw a phone. SERCO or Immigration offered him a trip back to Queensland. He had spoken to his family and was going home to see his son. He received a letter from Immigration cancelling his leave.
2. The second incident occurred on 18 January 2016 at 11:00. The writer of the report had been asked by SERCO "to go and review client" "after he reportedly punched a SERCO officer". The applicant was found to have injured his left hand, had superficial cuts to all knuckles, significant swelling and some bruising to index and middle finger, painful to touch, poor range of movement, unable to flex or extend fingers. The applicant refused to go to for an X-ray. He wanted to stay in his room and see the psychologist.
3. The applicant gave the following account of the incident. He was in and out of hospital with chronic arthritis while he was in Villawood. He was heavily medicated. All SERCO guards "knew not to bother us or engage with us or annoy us or wake us up". He was heavily medicated. He had just got out of hospital. The particular officer had recently started. He had been a prison officer. He spoke in a very aggressive manner. They were detainees not prisoners. The applicant had just got to sleep. The guard barged into his room. The applicant had asked him to knock on the door and had told him the next time he came in the applicant would smack him in the head. The applicant was looking for an apology. There was no apology, so he assaulted the guard.
4. When it was suggested to the applicant that his inability to manage his anger in detention results in violence to other people, the applicant said that he did not agree. He said that it was once in nine months and no-one is happy to be locked up. He explained that he wants to go home to his family.
5. The applicant said that before the January incident he had been undertaking anger management and seeing a psychiatrist. He had been offered more drugs but had refused. After the January 2016 incident he was seeing the psychiatrist about anger management and he was trying to control his temper. Later at the hearing, the applicant said that he does not think that he has a bad temper and he did the anger management classes because it is part of being in detention. He explained that there is a points system. You can build up to 50 points so you can buy shampoo, chocolate and phone cards. He also said that he has to go to classes because he is in a dormitory and there is no space. They have go get on. He trains in the gym.
6. While there is no evidence that the applicant has been charged with any offence arising out of either of the incidents that have occurred while he has been in immigration, both incidents reflect that he reacts physically and at times violently when he loses his temper. Those incidents are relevantly other conduct within the clause 13.1.1(1) and I regard them both as serious and the punching incident as very serious. I do not accept that the applicant's conduct was justified in either case.
7. Clause 13.1.2(1) of the Direction requires that in considering whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, I should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
8. If the applicant should engage in further criminal or other serious conduct, individuals, police officers and guards in immigration detention may be subjected to physical violence, including with weapons.
9. Based on the evidence before me, I find that the likelihood that the applicant will engage in further criminal or other serious conduct is very high. The only evidence before me about rehabilitation is his evidence about assistance with anger management since he has been in immigration detention. There is a reference in the documentation to his asking to see the psychologist after the January 2016 incident which may be considered to support his evidence. However, there is no information or evidence from independent or authoritative sources on the risk of his re-offending. I give little weight to the applicant's evidence about the anger management assistance, which he appears to have undertaken to some extent at least to earn points to buy things. I give no weight to his claim and promise that he will not re-offend because of his history of offences and serious conduct, and his physical and sometimes violent reaction when he loses his temper.
10. The above findings are supported by the evidence of the mother of the applicant's son. She said that she is aware of the applicant's criminal history, but not specifically. He has a shocking temper which has caused him trouble for as long as she has known him, that is, since 1992.
11. Primary consideration 1, the protection of the Australian community from criminal or other serious conduct, strongly favours the non-revocation of the mandatory cancellation of the applicant's visa.

Primary consideration 2 - the best interests of minor children in Australia

1. The applicant has a 25 year old daughter, a grand-daughter and a ten year old son in Australia. The applicant said that his daughter has her own life with her partner in Brisbane. She has a daughter. He claimed that he brought his daughter, her partner, and grand-daughter to Australia for a better life when he went back "home" to New Zealand in 2012 to see his family. Before that, he had not seen his daughter for 20 years. He claimed that he was in regular contact with his daughter but it was hard to be in contact when he was in detention, and it would be embarrassing to have a dad in gaol.
2. The applicant said that his son lives with his mother, the applicant's partner for 20 years plus. He is in contact with his son every day. Before being incarcerated, he provided money for his son whenever he could. He also said that he looked after his daughter financially, and helps his sister financially. His daughter came to Australia within the last three years.
3. The applicant said that he has not seen his son in three years because he was working in different locations. His son will not go back to New Zealand. His mother is a school teacher. The applicant said his son will have a better life in Australia.
4. The applicant's evidence about when and where he last lived with his son and the mother of his child, and about his relationship with her, was confusing and contradictory. He said that he last lived with them in 2014 in a village in the south-east of New South Wales and then said they last lived together in a Brisbane suburb in 2013. He lived in Tweed Heads "most of the time" and they would come and stay with him when they could. The applicant said that he almost married the mother of his child about 14 years ago, in about 2002, and gave reasons why that did not happen. He left the relationship and then she got pregnant. The applicant said both that he was going to resume the relationship, and that he is still in a relationship, with the mother of his child.
5. The mother of the applicant's son provided a written reference and gave oral evidence by telephone. In summary, her evidence was that she has known the applicant since 1992 and knows him well. They were romantically involved many years ago but not anymore. She has been the sole carer for their son since his birth. The applicant cannot afford to help. At times if she needs help, the applicant gives her money, but she gives it back as soon as possible because she knows he cannot afford it. If he is deported, being so far away from his child would impact on the applicant emotionally. He speaks to his son on the telephone every day. Despite loving his child very much, his visits are about once a year "due to poor health and financial reasons". She has not seen him for about three years. The last time the applicant lived closer than an hour away from his son was when his son was born. Since then, the applicant has been away or lived further away than an hour. If the applicant lived overseas he could not afford to visit his child at all. She believes that would "bring about deep depression" in the applicant.
6. I find that the evidence of the mother of the applicant' son is more reliable than that of the applicant and prefer her evidence to the applicant's evidence where their evidence is inconsistent. I find that the applicant has not seen his son for about three years, that is, since his son was six or seven, but does speak to him every day by telephone. His son turned 10 at the end of March 2016. The applicant has never lived with his son or been involved in his son's day to day care. His son's mother is his son's sole-carer. The applicant sometimes provides financial assistance which the child's mother repays.
7. I do not accept that the applicant visited his son about once a year, given that he has not seen him for the past three years, a little less than a third of his son's life. I find that the visits have been irregular.
8. The applicant gave evidence, which is supported by a letter dated 17 September 2015 signed by the director and two partners in a company registered on 7 September 2015, that he will be employed constructing sheds and cabins on a property in Queensland if he remains in Australia. The applicant said that work was on a property near Gladstone in Queensland, about 535 kilometres north of Brisbane. The reference states that the property is 22 kilometres from Mount Perry which is about 365 kilometres northwest of Brisbane and about 100 kilometres west of Bundaberg. The Tribunal tried unsuccessfully to contact the two referees by telephone twice during the hearing. Whether the property is near Mount Perry or near Gladstone, the applicant's plan for the future is that he will not be living near his son if he remains in Australia, despite his saying at the hearing that he wants to be with his son.
9. I find that his pattern of daily telephone contact and irregular visits to see his son would continue if he remained in Australia.
10. Based on the evidence of the mother of the applicant's son, any lessening of contact between the applicant and his son would adversely affect the applicant. She did not give evidence that it would adversely affect their son. I accept that the applicant believes he has a close relationship with his son. There is no evidence about the son's view of the relationship.
11. The applicant claimed that he would have no work, no money and no accommodation if he returned to New Zealand. I do not accept those claims for the following reasons. New Zealand has a welfare system similar to that of Australia.[1] Although a citizen of New Zealand, he has been able to access Disability Support Pension in Australia. There have been over the years various agreements between the two countries in relation to welfare payments.[2] I find that if the applicant were returned to New Zealand he would be able to access welfare benefits at least similar to those he has accessed in Australia. Although he claims he will not get work in New Zealand, there is no independent evidence to support that claim. I do not accept that the applicant's financial circumstances would prevent him from continuing his daily telephone calls with his son from New Zealand.
12. The applicant may not be able to afford to visit his son, but that has been the case in Australia as well. Another factor preventing his visiting his son according to his son's mother, is the applicant's health. That may be a relevant factor in the future whether the applicant is in Australia or New Zealand.
13. Although the applicant mentioned that he has a grand-daughter, the daughter of his 25 year old daughter, he made no claims about playing any on-going role in her life or having any contact with her. He did claim to be in regular contact with his daughter. He did claim to have brought his daughter and grand-daughter to Australia. Given that her mother is 25 years old, I am prepared to assume that the applicant's grand-daughter is a minor. The applicant emphasised that his daughter led her own life. There was no evidence from her in support of her father. Although he claimed Chrystal Kiikoro was his daughter, she gave evidence that she was his niece. I find that she is his niece, the daughter of his sister who also gave evidence in support of the applicant. His niece lives in Melbourne, not Brisbane where he said his daughter lives.
14. Given the lack of evidence about any contact or relationship between the applicant and his grand-daughter, I do not consider that the applicant's grand-daughter is a minor child in Australia affected by the decision. In making that finding, I have taken into account generalised evidence about the applicant being close to his family, however, I do not consider that such evidence establishes that the applicant has had any contact, let alone a relationship with his grand-daughter. In making that finding, I take into account that the applicant has been in New South Wales for about four years, his daughter and grand-daughter live in Brisbane and that he has not seen his son, who also lives in Brisbane, in three years.
15. The applicant gave evidence about nieces and nephews in Australia. One of his nieces provided a reference and gave oral evidence as mentioned above at [67]. She is not a minor child. She claimed that she wanted her two children aged 15 and eight to have the joy of his company in Australia "exactly what she had as a child", however, the evidence does not suggest those children have enjoyed his company beyond an annual visit for about six years since they moved to Australia. The evidence of the applicant's niece about wanting her children to have the same relationship with the applicant as she had in New Zealand expressed a hope for the future rather than the past reality. The evidence does not establish that there has been meaningful contact between the applicant and these two children in the past six years. There was no evidence that the applicant has contact with the children apart from the annual visits. There is no evidence that he plays a parental role in their lives or will in the future. In those circumstances, I do not consider that the separation from the applicant will have any effect on either of the children. I do not consider that either child is a minor child in Australia affected by this decision.
16. Taking all the above into account, I find the best interests of the applicant's son slightly weigh against not revoking the mandatory cancellation of the applicant's visa.

Primary Consideration 3 - Expectations of the Australian community

1. The Australian community expects non-citizens to obey Australian laws while in Australia. The applicant has the lengthy history of convictions set out and discussed above. I take into account that the applicant has lived in Australia for about 25 years, or about half his life. He suffered a workplace injury in 2005 and has worked casually since then. I take into account his contribution to the Australian community through his work. Taking into account all those matters, I find that the expectations of the Australian community weigh strongly in favour of not revoking the mandatory cancellation of the applicant's visa.

1. There is no evidence to suggest that the consideration international non-refoulement obligations are relevant in this matter.
2. Following is my assessment of the consideration "strength, nature and duration of ties".
3. The applicant has spent more than half his life in Australia, from the age of 23. He has returned to New Zealand on four occasions for brief periods. He began offending within a year of arriving in Australia. His first convictions were recorded on 7 August 1992 and he arrived on 21 July 1991. I take into account the applicant's evidence that he was new to the system. That does not excuse his conduct then or later. I take into account his work history as discussed earlier in this decision. He has contributed to Australia through his work.
4. I have taken into account the evidence provided by the mother of the applicant's son, discussed above. I find that the applicant's strongest family tie to Australia is his ten year old son, with whom he speaks every day and visits irregularly. The applicant believes he has a close relationship with his son. There is no evidence of his son's view of the relationship. I find that the applicant's relationship with his son's mother is not a romantic relationship but continues because of their son. As found above, if the applicant returned to New Zealand, he can continue his daily telephone conversations with his son but may not see him as he has in the past.
5. The applicant's daughter provided no evidence. If the applicant was in regular contact with his daughter and they have a good relationship, I would have expected that she would have been anxious to support his efforts to remain in Australia. On the evidence, she was born around the time the applicant left New Zealand and spent the first 22 years of her life there. Given the lack of evidence collaborating the applicant's claim that he is in regular contact with his daughter, I give little weight to his claim. I accept his evidence that she has led her own life. I have taken into account the claims of various witnesses about his closeness to his children but give it little weight in the absence of evidence from her.
6. The applicant's older sister provided written and oral evidence. She is an Australian permanent resident who came to Australia in 2012 or early 2013 and went straight to Melbourne where she remains. She claimed to be aware of the applicant's criminal history and knew that he had been in gaol, but did not know for how long or when. She said that the applicant does not tell her the details. They talk about happy things. He had visited her in Melbourne for nine days and she had seen him at the Gold Coast when she and her partner were on holidays in about 2008 or 2009. Otherwise she had not seen him. They used to ring each other when she lived in New Zealand. She said her parents are still alive. She claimed that the applicant's children were his lifeline and that he dedicated his life to them and family within Australia "helping us emotionally and financially". She claimed that he had been "a tower of strength to her" since she moved to Melbourne.
7. I accept that the applicant's sister has a lifetime's relationship with the applicant, although for about half of that time, they lived in different countries. They have both lived in Australia for three or four years and have seen each other for nine days in that period. The relationship is sustained without frequent personal contact. That it has been sustained while they were living in different countries in the past indicates that it can be sustained if the applicant returns to New Zealand. I do not accept that the applicant has provided any significant financial assistance to his sister since she has been in Australia because he has been receiving a disability support pension and working casually since before she arrived. I have also taken into account the evidence of his son's mother about his financial circumstances which is consistent with those sources of income.
8. The applicant's 33 year old niece gave written and oral evidence in support of the applicant, which is also referred to at [67] and [69]. She is a permanent resident living in Melbourne. Her written evidence described growing up with the applicant who "has always been right beside me since birth". She wants her two children "to have the joy of his company ... in Australia exactly what" she had as a child. When asked if she knew about the applicant's criminal history, she said that when she was little the applicant was in trouble for assault, many years ago. She had not seen him for many years until she moved to Australia in about 2010. She has seen him every year since she has been in Australia and maintains contact with him fortnightly. She was not aware that he had been in gaol.
9. I find that the applicant's niece had a close relationship with the applicant when she was a child in New Zealand. She is now 33 years old which means that she was about eight years old when he left. Based on her evidence, she did not see him again until she came to Australia in 2010, almost 20 years later. She has seen him about five times since she arrived in Australia and speaks to him fortnightly. For the reasons given above, I do not accept that the applicant has a relationship with his niece's son and daughter whom he has seen about five times in their lives. If the applicant returned to New Zealand he may not see his niece every year but I find on the evidence that there is no reason they could not continue their telephone contact or use emails.
10. Debbie Lawrence provided written and oral evidence in support of the applicant. She has no criminal record and is an Australian citizen. She is his friend and has known him for 15 to 16 years since she met him in Tweed Heads. She knew him as an acquaintance in New Zealand. She said that she had been his carer for many years until he felt capable of re-entering the workforce. She referred to the mother of the applicant's son as his partner. At the hearing she talked about the 2006 incident where the applicant had an "altercation" with family in Tweed Heads. She said that he was provoked and lived with her after that for months or a year because he was not allowed to go back to his home where his uncle and aunt lived. She last saw him about 18 months ago before he went to gaol. She speaks to him every so often.
11. I find that the applicant's link with Debbie Lawrence has continued during a relatively large part of his life in Australia. He has lived with her when the law prevented him living in his own home in about 2006. She has cared for him for a period of time in the past. They are in contact every so often. She knew more about the applicant's life than any other friend, or his sister, or his niece. I find that they could continue to contact each other by email or telephone if the applicant returned to New Zealand although they may not see each other.
12. Nelly Debney provided written and oral evidence in support of the applicant. She was born in Australia and has known the applicant since 2002. She knew of a couple of incidents in his criminal history. She knew that he had spent a couple of months in prison but believed that he had been acquitted because that was what he had told her. He has helped her with projects in her garden and has many practical skills. I accept that she is a good friend of the applicant and has been for about 14 years and supports his wishes to remain in Australia.
13. The applicant's landlords in the south-east of New South Wales for three years from February 2012 provided a written reference and one of them gave oral evidence to the Tribunal. They lived on the same property as the applicant, had a close association with him, and gave very favourable evidence from their experience with him. The female landlord told the Tribunal that they were aware of allegations of criminal conduct but she was not aware that the applicant was guilty because he told them the allegations were not true. She said that when they were cleaning out his accommodation, they found what appeared to be an implement for cutting sugar cane with an eight or ten inch hook on the end. She thought that whoever made the accusation against the applicant was probably referring to that, or maybe not.
14. A former neighbour of three years from the same area in south-east New South Wales gave very favourable evidence for the applicant in a written reference. He told the Tribunal that he was not really aware of the applicant's criminal record. He knew he had been in some trouble but was not sure what it was. He took the applicant on face value.
15. The applicant's landlords and neighbour have known him for three years. I give little weight to those social links because the applicant has known those people for a relatively short period of time and has left that area with no apparent prospect of returning. If he remains in Australia, he will move to Mount Perry in Queensland.
16. The director and two partners in the business which was proposing to employ the applicant on his release from detention provided written evidence in support of the applicant. They all give Mount Perry, Queensland, addresses on the correspondence. They claim to have known him for eight years and to "have found him to be of excellent character & very willing to lend a hand when needed". I give little weight to this evidence because it lacks details about the strength and nature of their various relationships with the applicant in that eight years, particularly taking into account that since February 2012 that applicant had been living in south-eastern New South Wales, then served a six month gaol term in Junee and Bathurst until the end of May 2015 and since his release has been living in migration detention in Sydney. That is, he has not been living in Queensland for at least four years. Their evidence did not indicate that they had any knowledge of the applicant's criminal history.
17. Nathan Halse provided a written reference dated 13 July 2015 in support of the applicant. He did not give evidence at the hearing. He said that he had known the applicant for many years. He gave no indication that he was aware of the applicant's criminal history. His evidence lacked detail about the nature and strength of the link with the applicant.
18. The applicant claimed that the director and managers of the company and Mr Halse knew that he had been in gaol. They may have known that, however, they may not have known the nature of the offences, the length of the sentences, or that he had been convicted. He had told Ms Debney that he had been acquitted. The applicant's evidence does not alter the assessment I have made of their evidence.
19. Rebecca Dee, an Australian resident, provided a very supportive written reference for the applicant dated 27 June 2015. She did not state how long she had known him. She met him in Bega. She made no reference to his criminal history. She did not give evidence at the Tribunal hearing. The applicant said that she had emailed him and he thinks she has gone to Melbourne.
20. I give little weight to applicant's link with Ms Dee. She has moved to Melbourne and apparently not been in contact with the applicant since then. I find that she met the applicant while he was in south-eastern New South Wales and therefore only knew him for three years, at most. While the link might have been strong in that period, it is not now.
21. Taking all those matters into account, this consideration slightly favours revocation of the mandatory cancellation of the applicant's visa.
22. The evidence relevant to the consideration, impact on Australian business interests, is that from the director and managers of the company referred to above. The company Certificate of Registration shows that it was registered on 7 September 2015. The letter signed by the director and two partners is dated 17 September 2015. It states:

We are building a family friendly bush retreat where, eventually we will host mini music festivals. This is quite a way off at this stage but we all agree Kooki would be an excellent addition to our start up team".

1. "Kooki" is the applicant's nickname. The letter says that there is plenty of work for him, he would live on site, share accommodation and earn a nominal wage plus room and board. The writers expressed the hope that the applicant "can eventually become an integral part the company" and that they can sponsor him. The second letter from one of the partners dated 30 September 2015 says that work has started, there are two new sheds to erect and the first cabins "begin next month", "the steel for the bridges arrives approximate October" and it will be necessary to hire a crane and or excavator "as the steel weights about 3 ton each".
2. The applicant said that he cannot go back to construction work and cannot carry timber. He can drive trucks. He said that he will supervise the construction of the cabins. He also said that he will drive trucks and excavators.
3. I find that the project was proceeding in the absence of the applicant. He is not essential to the work. I find that the project is not a major project or an important service in Australia. Non-revocation of the applicant's visa will not significantly compromise the delivery of a major project, or delivery of an important service in Australia. I give no weight to this consideration.
4. The evidence before the Tribunal does not enable an assessment of the consideration "impact on victims" described at clause 14.4 of the Direction.
5. I have had regard to the impediments that the applicant will face if removed from Australia to New Zealand, in establishing himself and maintaining basic living standards as required by clause 14.5 of the Direction.
6. The applicant is 47 years old and has been in Australia for more than half of his life. He suffered a workplace injury in 2005 and is receiving the disability support pension and does casual work suited to his ability. He claimed that he is waiting for knee surgery and expressed the hope that he will return to full-time work soon. He claimed that he would have no accommodation, no money and no work if he returned to New Zealand and he does not know the cities there. He claimed that he had no family in New Zealand. However, at the beginning of the hearing, he said that he has extended family in New Zealand, aunts, uncles and cousins and that he is very familiar with the culture and language there. His sister told the Tribunal their parents are alive and they have siblings in New Zealand, although a brother and sister have died in the last couple of years.
7. The applicant suffers severe inflammatory arthritis and has been treated at Canberra Hospital. He requires regular hospital visits.
8. New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand. He lived there until he was 23 years of age and has visited on four occasions. New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The applicant will have access to those services as a New Zealand citizen. I take into account that the applicant has work contacts in Australia that he will not have immediately if he returns to New Zealand. I do not accept his claim that he has no family in New Zealand. I accept his sister's evidence that their parents are alive and some siblings live there but find on the applicant's written evidence, that his relationship with his father is fractured. I find on his evidence that he has extended family there including aunts, uncles and cousins.
9. In Australia, the applicant has some long term good friends, his son, his son's mother, his daughter and grand-daughter, a sister and niece and her family. As found above, his closest relationship is with his son. In summary, his relationships with his family and friends are maintained mostly by telephone contact rather than by personal contact. Such contact can be maintained if he returns to New Zealand or by electronic means. His personal contact with his long-term friends and family, including his son, is irregular and infrequent, for example particularly during the last four years when he has been in New South Wales. If he remained in Australia, he would live at Mount Perry, a considerable distance from his son, his son's mother and the friends who provided evidence in support of him.
10. I take into account the evidence of the mother of the applicant's son that not being able to see his son would "bring about deep depression" in the applicant. However, against that is the fact that at least from 2012 until late 2014 when he was gaoled in relation to the most recent offences, the applicant did not visit his son. He was working during the period, based on his evidence. He is proposing to work near Mount Penny if he remains in Australia, a long way from Brisbane where his son lives. Living in both those places have been the applicant's voluntary decisions, although both relate to the availability of work he is capable of doing.
11. During the three years the applicant lived in south-east New South Wales, he was able to make new friends, as discussed earlier in this decision, which indicates that he will be able to make new friends if he returns to New Zealand.
12. Taking all those matters into account, I find that the applicant will suffer some hardship if he returns to New Zealand.
13. This consideration slightly favours revocation of the decision to cancel his visa.

1. The applicant made representations as required by s.501CA(4)(a). Those representations are contained in the T documents and I have taken them into account, together with the other evidence before me.
2. For the reasons set out above, I am not satisfied that the applicant passes the character test as defined by s.501(6).
3. In considering whether I am satisfied that there is another reason why the decision to cancel the applicant's visa should be revoked, I have taken into account the Direction and all the evidence before me.
4. Two of the primary considerations, the protection of the Australian community from criminal or other serious conduct and expectations of the Australian community strongly favour non-revocation of the decision to cancel the applicant's visa.
5. The primary consideration, the best interests of the applicant's son, slightly favours revocation of the decision, as do the secondary considerations strength, nature and duration of ties and extent of impediments to the applicant if he is removed.
6. On balance, those considerations favouring non revocation of the decision to cancel the applicant's visas strongly outweigh those against revocation.
7. For the above reasons, the decision under review is affirmed.

I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.................................[sgd].......................................

[1] http://www.workandincome.govt.nz/individuals/

[2] https://www.dss.gov.au/about-the-department/international/international-social-security-agreements/current-international-social-security-agreements/australia-and-new-zealand-frequently-asked-questions