Administrative Appeals Tribunal Act 1975, s 33(1AA)

Migration Act 1958, s 501, s 500(6J)

1. Mr Joseph Williams is a New Zealand citizen who came to Australia on a

TY subclass 444 visa on 11 January 2005. He has not taken out citizenship since he came to this country, but he has been in a good deal of trouble. The Minister decided to cancel his visa on character grounds under s 501 of the Migration Act 1958 ("the Act"). The applicant has asked the Tribunal to reconsider the matter. 2. The applicant does not read or write. His lawyer ceased acting for him in advance of the hearing on 6 June 2011 although he did have the assistance of an officer from Salvo's Legal who was able to read and explain the content of documents to him at a resumed hearing on 16 June 2011. In the circumstances, the applicant was under a serious disadvantage in the presentation of his case. 3. The Minister's decision is set aside. I explain my reasons below.

1. Mr Williams was born in New Zealand in 1976 and lived there until he migrated to Australia in 2005. I was not provided with a copy of his criminal record in New Zealand; the respondent says the applicant did not consent to the department obtaining access to that information from the New Zealand authorities. I do not think I should make anything of that failure as it became apparent during the hearing that the applicant may not have understood the department's request. He told the hearing that he had been charged with a number of comparatively minor property and public order offences and that he had spent at least one short stint in prison. I note the sentencing judge acknowledged the applicant's criminal history in New Zealand was not especially serious in the course of his remarks set out at p 66 of exhibit one. Curiously, the transcript of that hearing does record Mr Williams telling the court that "This [ie his period on remand] is the only time I've been to gaol". That evidence is inconsistent with his evidence before the Tribunal, but I am not persuaded that I should make anything of that inconsistency.
2. Mr Williams was a member of a gang. He says his offences in New Zealand were committed in connection with his gang membership. He gave evidence of falling out with members of his gang over his relationship with Ms Holland who is now his de facto partner. Mr Williams said matters came to a head at the end of 2004 when members of his own gang conducted a drive-by shooting on the home of a relative of his partner who was a member of a rival gang. One of the applicant's children was said to be injured in the shooting, although the respondent points out that claim has not been verified. Mr Williams said he confronted members of his own gang's hierarchy over the incident. The confrontation resulted in him being expelled from the gang. He says a price was placed on his head and members of the gang were instructed to kill him if he were found. He left the country a few days later to start a new life in Australia. He moved in with his sister at first instance and quickly obtained regular employment.
3. Ms Holland and the applicant's mother also spoke of the trouble with the gang. Ms Holland said she had split up with the applicant before his departure from New Zealand. They already had a number of children together. She and the applicant suggested the children might be in danger because of the gang's animus towards Mr Williams. Ms Holland said the applicant subsequently encouraged her to join him in Australia and resume their relationship. She agreed and she and her children moved in with Mr Williams at his sister's home before Mr Williams,

Ms Holland and the family moved into premises of their own. 4. It is appropriate to refer at this point to the evidence about the threat posed by gangs in New Zealand. The applicant and all of his witnesses insisted his life was in serious danger if he returned to that country. He said there was nowhere he could hide from the gangs, which had a national reach. The applicant and Ms Holland said the applicant could not go to the police for protection, and there was no point moving to a new town. I have no reason to doubt their views were honestly held, but I was not provided with any independent evidence about the problem. 5. I decided it was appropriate to seek additional evidence at the conclusion of the hearing on 6 June so I could make a judgement about the level of risk the applicant would face if he were returned to New Zealand. Unfortunately for

Mr Williams, s 500(6J) prevents the applicant from submitting fresh documentary evidence at that point in the hearing. Mr Williams said he could obtain assistance from his family members to find information that would be helpful but I was not satisfied I could receive it into evidence in light of the prohibition in s 500(6J). I made it clear to Mr Williams that the respondent was expected to conduct a proper search to provide evidence that shed light on the questions I had asked about the state of gang activity and the level of violence that might be directed at someone like Mr Williams. I pointed out s 33(1AA) of the Administrative Appeals Tribunal Act 1975 required the decision-maker to assist the Tribunal in these endeavours. At the conclusion of the hearing on 6 June, before the parties left the courthouse, my associate provided a copy of a research paper prepared for the Refugee Review Tribunal in 2009 that addressed these matters. That paper had been retrieved by diligent Tribunal staff in the course of a brief search. I was hopeful of obtaining further and better information. 6. The evidence provided by the respondent at the resumed hearing on 16 June included the material provided to it by the Tribunal and two other documents: a single page from the Radio New Zealand website reporting on gang arrests in 2008, and another page from the New Zealand Police website talking about organised crime in that country. I was hoping for rather more than that in circumstances where the applicant experienced so much difficulty effectively presenting his own case. Taken as a whole, the material paints a more sanguine picture of the gang situation in New Zealand than Mr Williams had described. The evidence (in particular, the research document prepared for the Refugee Review Tribunal in 2009) acknowledges the existence of large, well-established ethnic gangs in New Zealand that engage in criminal activity, most obviously drug-dealing. There is certainly evidence of violence amongst gang members feuding over territory. But the evidence also suggests the authorities are dealing firmly with illegal behaviour by gang members. The police have been given new powers and there have been many arrests and assets have been seized in recent years. Mr Geary, who was present at the resumed hearing, suggested on the applicant's behalf that the material was out of date although it could also be said the applicant may be unaware of the more robust approach of law enforcement agencies to the problem since he left the country in 2005. I will return to the evidence about the threat posed to the applicant in due course. 7. The applicant began to get into trouble with the law soon after he arrived in this country. He was convicted of a car theft in December 2006 and a further string of property offences in 2007. He was given a suspended sentence and fined in relation to the property offences. He was convicted and fined after breaching that sentence in 2008. In 2009, he was convicted of a minor drug charge and was also convicted of assaulting and obstructing police and breaching bail. But worse was to come. 8. Mr Williams acknowledged that he was involved in drugs and associating with a bad crowd. He says he was badly affected by the illness and death of his father. Whatever the reason, he was involved in an armed robbery in 2009. He was arrested and charged with a string offences arising out of the robbery, including a car theft. He was also charged with breaking and entering, burglary, arson and breaching the terms of his suspended sentence. The details of the charges were provided in the respondent's statement of facts, issues and contentions. I will not repeat them here. The worst of these offences were the armed robbery, which involved actual violence, and the arson. 9. Mr Williams was held without bail for a lengthy period before he pleaded guilty to all of the charges on 31 August 2010. He was sentenced to serve 112 days of his previous suspended sentence. He was also sentenced to 5 year terms of imprisonment in respect of the serious offences but the sentencing judge decided those sentences should be suspended after 12 months. The applicant was released from prison shortly before Christmas 2010. He was immediately placed under the supervision of the parole authorities who monitored his behaviour in accordance with the parole conditions, which included reporting requirements and drug tests. If the applicant had not been taken into immigration detention in March 2011, he would still be subject to that regime. I am told he passed his drug tests throughout the period he was at large in the community. 10. Mr Williams pleaded guilty to the charges in the District Court but he told the Tribunal that he was not really guilty of the armed robbery. He said he only pleaded guilty in order to have the matter dealt with because of a lengthy and frustrating delay in bringing the matter on for a trial in the District Court. I note the sentencing judge remarked on the unfortunate delay, but the applicant was represented by a lawyer and apparently obtained advice. He pointed out he did not carry out the robbery himself; the respondent acknowledges he was, at most, behind the wheel of the getaway car. The sentencing judge had pointed out in his remarks that the applicant was still guilty of the same crime. It is unclear whether the applicant appreciated that fact. Be that as it may, he insisted he was not responsible for that offence, although he expressed remorse for the other matters. 11. While he was on parole in early 2011, Mr Williams was able to spend time at home with his family. He did not work; he said he wanted to make up for lost time and assist his partner with the care of their children. He gave evidence to the effect that he took an active interest in their schooling and other activities. His mother and partner and sister gave evidence testifying to the change in his behaviour. They conceded he was a poor father in the past, but they said his recent behaviour indicated a sincere desire to be a good father. 12. I note Mr Williams and Ms Holland are now expecting their tenth child. 13. I was not provided with any independent evidence from experts about the applicant's rehabilitation. He said he had a clear incentive not to offend again: he did not want to lose his family. He said he had regular contact with his children while he was in prison and more recently while he has been held in migration detention. It is unclear how close that relationship has been in the past. He completed a number of courses while he was in gaol but I was told his access to some support services was limited because they were only available to prisoners serving longer sentences. I was not provided with other information from his prison or parole file. 14. I would make one general observation before considering the application of the law. The applicant's case was in an unsatisfactory state. I have noted his lawyers ceased acting for him in advance of the hearing. It was unclear what they had done before they ended their involvement with the matter. This simple man who could not read or write was left to prepare his own case in a strictly limited time frame from a migration detention centre in Sydney when his family - his only support - was in Brisbane. As it happens, they were only able to offer limited support: his partner has nine children to look after with another on the way, his sister has seven children of her own and a full time job, and his mother is suffering from a terminal illness. While I do not criticise the performance of any individual from the department or its representatives over the conduct of the case, the circumstances were such that the Tribunal's job is unusually difficult.

1. I turn then to the law. I am satisfied Mr Williams has failed the character test in s 501(6) because of his substantial criminal record. I must therefore consider whether I should exercise the discretion in s 501(2) to cancel his visa. I acknowledge that I must refer to the ministerial direction ("the Direction") known as Direction 41 - Visa Refusal and Cancellation under s 501. That direction sets out a structured decision-making process that I am required to follow. It includes four primary considerations that must be taken into account and a number of other considerations that might be relevant.
2. The first primary consideration refers to protection of the Australian community. The Direction requires that I consider the seriousness and nature of the conduct and the risk that it may be repeated. I will deal with each of those matters in turn.
3. There is no doubt the applicant's criminal conduct was serious - in particular, the armed robbery and the arson. Both of these activities are referred to in the Direction as examples of serious offences. The fact these offences were committed while the applicant was already on a suspended sentence in respect of other offences is especially problematic. These points were all made by the sentencing judge in the course of his remarks, and were reflected in the lengthy head sentences he imposed in respect of the various convictions. The fact the applicant did not actually conduct the armed robbery himself mitigates the seriousness of that offence to some extent for present purposes, although the sentencing judge pointed out the applicant was still guilty of the same offence as the individuals who actually held the weapon and performed the robbery.
4. Mr Williams now claims that he is not guilty of the armed robbery, notwithstanding the fact that he pleaded guilty following legal advice. He says he felt he had no choice if he were to have the matter dealt with. The respondent says I cannot go behind the District Court's decision. As it happens, I do not have any evidence that would enable me to call the convictions and sentence into question (apart, of course, from the applicant's own uncorroborated testimony) even if it were possible to re-visit the convictions. I think I must accept the convictions and sentences as they stand. I note that a relatively short time has elapsed since the most recent offending (in 2009) although the applicant has been in gaol or migration detention for most of that time, which means he had limited opportunities for re-offending.
5. I must have regard to the whole of the applicant's criminal record, of course. That includes a total of 14 offences between 2006 and 2010 although not all of those matters were serious. There were also a number of other minor offences in New Zealand that resulted in fines and a gaol sentence on at least one occasion.
6. I am satisfied the seriousness and nature of the relevant conduct weighs in favour of cancellation. But before I can reach a concluded view in relation to the first primary consideration, I must have regard to the risk that the conduct may be repeated.
7. The fact the applicant has appeared before the courts in Queensland on five occasions since coming to Australia is discouraging. The fact that some of his offences were committed while under supervision is also worrying. I am troubled that the offences appeared to become more serious over time. I am especially concerned that the applicant now denies he committed one of the offences to which he pleaded guilty.
8. There is limited information upon which I could make an assessment of the extent of the applicant's rehabilitation. I was not provided with parole assessments or reports from experts attesting to his reform; I do not understand such reports exist, and the applicant was obviously unaware of the need to commission them. There is limited evidence of him successfully completing courses of training because I understand those courses were not available. I am told he managed to stay out of trouble and comply with requirements while he was at liberty earlier this year.
9. The sentencing judge's remarks are of particular significance in the circumstances. His Honour made it clear in his remarks that he thought it was appropriate to give the applicant a second chance. The sentences imposed by the Court envisaged the applicant being carefully supervised over a long period following his release. In particular, that supervision would reduce the chances of him taking drugs, which were his undoing in the past.
10. While the applicant's history and lack of insight into his offending raises serious questions over his capacity to avoid further offending, the opinion of the sentencing judge offers a good deal of comfort that the applicant will mend his ways.
11. In all the circumstances, I accept the first primary consideration weighs in favour of cancellation, although I am not satisfied it weighs as heavily as the respondent contends given the sentencing judge's comments.
12. The second consideration - whether the applicant was a minor when he began to live in Australia - does not apply in this case. The third consideration is the length of time the applicant was ordinarily resident in Australia prior to engaging in criminal activity. I am satisfied this consideration counts against the applicant and in favour of cancellation. He arrived here in 2005 which means he has not developed significant ties to the Australian community - yet he has managed to commit a number of offences in that time, starting in 2006.
13. The last primary consideration is international obligations. The most obvious of these is the obligation to consider the interests of the applicant's children. Eight of them are under the age of 18. Ms Holland says she will not return to New Zealand with the family if Mr Williams is required to leave. She referred to the risk of mob violence. She also referred to the expense of transporting or re-locating such a large number of children, and the fact that the children appear to be settled here. It seems likely that the children will be separated from their father if he is required to leave. I accept the applicant has not had a close or especially warm relationship with his children prior 2011. He was not, by all accounts, a particularly good father. There is some evidence that he has made an effort to change all of that. Given the number of children and the fact that Ms Holland has access to few other relatives, I am inclined to the view that the interests of the children would be served by their father's presence. In those circumstances, the international obligations weigh in favour of the applicant and against cancellation. In my view, they weigh at least as heavily as (and therefore to some extent offset) the weight accorded to the first primary consideration.
14. There was some discussion at the resumed hearing over whether Australia's obligations under the International Covenant on Civil and Political Rights would be an issue if I were to find the applicant was at risk of being killed by a gang. The respondent submitted that these obligations were not an issue because the risk, if any, did not emanate from the state. I will accept for present purposes that the risk must emanate from the state rather than from individuals before an obligation arises. I am not aware of any other international obligations that might be relevant.
15. I turn now to the other considerations that are referred to in the Direction. These considerations will generally carry less weight than the primary considerations.
16. Mr Williams's family ties count heavily in his favour. He has nine children in this country with a tenth on the way. He has a long term de facto partner here with whom he was living before he was placed in detention. He has a sister with seven nieces and nephews who live nearby. He has a brother here, although he does not have close contact with him. His mother, who is terminally-ill, lives close to the applicant's family and requires intensive assistance. Those relationships have been disrupted by time spent in gaol and in immigration detention, it is true, but I am satisfied (from the evidence of the applicant's sister and his partner, in particular) that those relationships are significant.
17. Mr Williams's age and state of health do not weigh in favour or against cancellation. I note he has significant links with New Zealand, having lived there over many years - although his immediate family has moved to Australia and his links with the New Zealand community have been disrupted by his problems with the gang. The respondent appears to acknowledge Mr Williams might have to live in a different part of the country if he were to return, which must diminish the weight of this consideration.
18. The respondent says there is nothing in the applicant's lack of educational attainment that I should consider, but I disagree. The Direction notes at [11.3.f.i] that the lack of education might be relevant if it has hampered the person's presentation of their own case. I have already observed that has happened in this case. I also note the applicant has undertaken some study in prison and he has obtained a 'white card' qualification that could assist him to get a job in construction work. That achievement is significant given the learning difficulties the applicant faces.
19. The likelihood of hardship to the applicant and family members is of particular relevance. The applicant's mother is in very poor health and it is clear that she will suffer if her son is not available to assist her. The applicant's partner and children (and his sister and her large family, to a lesser extent) will also be deprived of the applicant's care and attention. Given the size of that family, that it is an important matter.
20. The risk of hardship to the applicant if he returns to New Zealand is harder to assess. I am concerned in particular by the evidence that the applicant is a marked man. There is no reason to doubt that the applicant has some cause for concern, but the extent of the risk he faces is unclear. The limited material presented by the respondent tends to suggest the New Zealand authorities have the gang problem in hand, but even that material acknowledges the gangs are a law and order issue, and that they sprawl across the country.
21. The material I have before me suggests that, on balance, there is a manageable but not trivial risk of harm if the applicant is returned to New Zealand. That counts against the exercise of the discretion to cancel his visa.
22. The last matter I must consider is whether the applicant was formally warned in the past that his conduct might result in his visa being cancelled. The respondent conceded Mr Williams was not told of the power to cancel his visa but I do not think that counts for a great deal in the circumstances.

1. The primary considerations, taken together, marginally favour cancellation. The other considerations, taken together, strongly favour permitting the applicant to stay. While I accept the primary considerations generally carry more weight, I am satisfied the visa should not be cancelled.
2. I would add only this: Mr Williams needs to appreciate that he has almost certainly been given his last chance. If he breaches the conditions of his parole or

re-offends, I anticipate the Minister would promptly revisit the question of the applicant's future in this country.

I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe

Signed: ......................................................................

Solicitor for the Applicant Ms A Collins & Ms J Cummings, Clayton Utz