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Gundesen and Minister for Immigration and Border Protection (Migration) [2016] AATA 831 (24 October 2016)

Last Updated: 25 October 2016

Gundesen and Minister for Immigration and Border Protection (Migration) [2016] AATA 831 (24 October 2016)

Division
GENERAL DIVISION
File Number
2016/1208
Re
Kyle Gundesen

APPLICANT
And
Minister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal
Deputy President I R Molloy
Date
24 October 2016.
Place
Brisbane

The decision under review made on 8 February 2016 is set aside and replaced with a decision to revoke the decision dated 30 July 2015 to cancel the applicant’s visa made under s 501(3A) of the Migration Act 1958.

.........................[Sgd]...............................................

Deputy President I R Molloy

CATCHWORDS


MIGRATION – cancellation of visa on character grounds – applicant does not pass the character test – sentenced to a term of imprisonment of 15 months – the protection of the Australian community from criminal or other serious conduct – expectations of Australian community –reasons why the original decision should be revoked

LEGISLATION

Migration Act 1958 (Cth)

SECONDARY MATERIALS

Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION


Deputy President I R Molloy


24 October 2016.

INTRODUCTION

  1. Kyle Gundesen (“the applicant”) has applied to the Tribunal for review of a decision of a delegate of the Minister for Immigration and Border Protection (“the respondent” or “Minister”) dated 8 February 2016. The decision, under s 501CA of the Migration Act 1958 (“the Act”), was not to exercise a discretion to revoke a mandatory cancellation of his visa under s 501(3A) of the Act.[1]

BACKGROUND

  1. The applicant is a New Zealand citizen having been born there on 28 April 1990.[2] He was brought to Australia at just under two years of age arriving on 26 April 1992.[3] He has remained in Australia since that date except for a brief visit to New Zealand with his grandmother when he was 11. He is now 26 years of age.
  2. The applicant was the holder of an Australian Class TY Subclass 444 Special Category (Temporary) visa until it was cancelled by a delegate of the Minister on 30 July 2015. His visa was cancelled under s 501(3A) of the Act because the delegate was satisfied the applicant did not pass the character test because of the operation of s 501(6)(a) (substantial criminal record) rendering cancellation of his visa mandatory.[4]
  3. Under s 501(7)(c) of the Act, for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. On 4 June 2015, at the Magistrates Court at Maroochydore, the applicant was convicted of a number of offences. In particular he was convicted of breaking and entering premises for which he was sentenced to a period of fifteen months’ imprisonment.[5]
  4. Under s 501CA(4) of the Act, a person whose visa has been cancelled under s 501(3A) may make representations to the Minister about revocation of the original decision. Under s 501CA(4), the Minister may revoke the original decision if, relevantly:

“(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 Minister’s delegate, in deciding not to revoke the original decision, was bound to find the applicant did not pass the character test by reason of his conviction and imprisonment for a period exceeding twelve months. The delegate was not satisfied there was another reason why the original decision to cancel the applicant’s visa should be revoked.[6]

ISSUES

  1. On this review I am also bound to find the applicant does not satisfy the character test. That is deemed to be the case by the operation of the Act in circumstances where the applicant is a person who has been sentenced to a term of imprisonment of 12 months or more.
  2. The issue is whether there is another reason why the original decision to revoke the applicant’s visa should be revoked. I have decided that issue in favour of the applicant for the reasons set out below.

DIRECTION NO. 65

  1. Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about: (a) the performance of those functions; or (b) the exercise of those powers. Under s 499(2A) a person or body must comply with a direction under subsection (1). There is no dispute that this Tribunal is a body to which these provisions apply.
  2. The current direction issued by the Minister is Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”). The purpose of the Direction, as stated relevantly in the Preamble, is to guide decision-makers performing functions or exercising powers under s 501 of the Act to revoke a mandatory cancellation under section 501CA of the Act. The Preamble repeats that under s 499(2A) of the Act, such decision makers must comply with a direction made under section 499.[7]
  3. Paragraph 6.3 of the Direction contains the Principles that provide a framework within which to approach the task of deciding whether to revoke a mandatory cancellation under section 501CA.

“Principles

  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.”
  8. Paragraph 7(1)(b) of the Direction provides that, informed by the principles in paragraph 6.3, a decision-maker must take into account the considerations in Part C of the Direction, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
  9. Under Part C of the Direction, a decision-maker must take into account three primary considerations and must take into account five other considerations, where relevant. In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the primary considerations are:
  10. Under paragraph 14(1) of the Direction, other considerations must be taken into account where relevant, which may include (but are not limited to):
  11. In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.[9] Both primary and other considerations may weigh in favour of, or against, whether or not to revoke a mandatory cancellation of a visa.[10] Primary considerations should generally be given greater weight than the other considerations.[11] One or more primary considerations may outweigh other primary considerations.[12]

EVIDENCE

  1. As I have said the applicant arrived in Australia in April 1992 at almost 2 years of age. He lived with his parents until the age of 4. When the applicant was 4, his father was killed in a workplace incident.
  2. The applicant described a violent and unstable existence with his mother. He said she was addicted to heroin and was an alcoholic.[13] He said she taught him to steal from shops.[14]
  3. At the age of 6, on his first day of school, the applicant was placed in foster care and became a ward of the State.[15] From that time, until the applicant was 17, the applicant was placed in over 29 foster homes and spent periods of time living on the streets.[16] The applicant spent no longer than 23 months at any one foster home.
  4. The applicant began drinking alcohol and using drugs from an early age, becoming dependent on them.
  5. The applicant has a long criminal history, commencing at the age of 15, in 2005, when the applicant made his first court appearance in the Southport Children’s Court for stealing and break and enter offences. I will return to his criminal history in more detail below. It is an important feature of this application.
  6. In 2011, the applicant witnessed his best friend’s death. The friend was struck by a motor vehicle apparently driven intentionally at him by a third party. Following this incident, the applicant was diagnosed with Post Traumatic Stress Disorder, severe anxiety and depression for which he was prescribed medication.[17] The applicant said he started drinking very heavily after the incident.
  7. In 2007, the applicant entered into a long-term relationship with Lisa Marie Eldridge.[18] The applicant resided with Ms Eldridge and her family on the Gold Coast for over 8 years until he was sent to prison in March 2015. The friend, whose death the applicant witnessed in 2011, was Ms Eldridge’s brother.
  8. The period of time the applicant spent living with Ms Eldridge and her family was said to represent the longest period of time in which the applicant has had the benefit of a stable home and integration into a family unit.
  9. The applicant’s relationship with Ms Eldridge has broken down since he has been in prison and then in immigration detention. He remains in immigration detention.
  10. The applicant gave evidence by video link. His evidence was he did not know, and was given no warning, he was liable to be removed from Australia. He said he knew he was born in New Zealand, but had no idea he was not an Australian citizen.[19]
  11. He said that his offending was 90% due to alcohol; either as a result of drunkenness, or through a desire to get money for alcohol.
  12. He claimed that through his period of incarceration he had lost the desire for alcohol. He said that in prison he had hit rock-bottom, and came to realise the effect alcohol had had on him. He said he realised he was an alcoholic.[20] He referred to his non-compulsory attendances at Alcoholics Anonymous meetings in 2015.
  13. The applicant said it was really a good thing he was sent to prison. He said he had been in a really bad way from prescription drugs.
  14. The applicant rejected the suggestion that there was a high-risk he would re-offend. He claimed to have learned from his experience of incarceration. He claimed he is now a different person.
  15. The applicant maintained his integration into Ms Eldridge’s family and the emotional support offered by her family to him, have not ceased as a consequence of the breakdown of his relationship with Ms Eldridge.
  16. He said that if he is released back into the Australian community, he plans to live with his brother who has stated he will assist the applicant in obtaining employment and will provide him with accommodation.
  17. The applicant said he has no family that he knows of in New Zealand and no support.[21] He said the threat of removal from Australia is a further incentive to him not to re-offend.[22]
  18. Evidence was given by the applicant’s brother, Aamon Noakes. He is older than the applicant. They have the same mother but different fathers.[23] Mr Noakes gave a similar account to the applicant concerning his mother. He said he went to live with his grandmother when the applicant was a baby. The grandmother was not able to take on the applicant as well as him. They have led different lives.
  19. Mr Noakes has no criminal convictions. He is an Australian citizen and a qualified electrician. He had some knowledge of the applicant’s criminal history. Mr Noakes said the applicant could stay with him, and he would help him with a job.
  20. On the subject of employment, the applicant has a reference from a former employer, ADG Group Pty Ltd, describing the applicant as very reliable, honest and hard-working. ADG Group are contracted by local authorities to look after parks and gardens. The applicant was employed as a labourer and landscaper for 14 months from October 2012 to December 2013.[24]
  21. Dr Stefan Goldfeder, psychiatric registrar, Prison Mental Health Service, has provided two reports dated 31 August 2015[25] and 7 December 2015[26]. The applicant, he said, came under the care of the Service from at least April 2015. Dr Goldfeder anticipated that if the applicant were moved to New Zealand there is a high risk of significant deterioration in his mental state. He said:
“The basis for this was the consequent dislocation and alienation that would reinforce his sense of rejection; his lack of knowledge and lack of identification with New Zealand culture; loss of personal attachments; lack of personal supports; no clinical records; uncertain future and likely homelessness; and the stress and delays that registering or intake procedures in the New Zealand health system would entail, and difficulties in engaging him in treatment.”[27]
  1. Evidence was also given by Lisa Noda. She knew the applicant as a friend of her son. She said she always found him to be friendly, co-operative, respectful and wanting to do the right thing.[28] Her knowledge of him, however, was only until he was 16, except for recent conversations with him. Nonetheless she was willing to have him stay with her family.
  2. Lisa Eldridge provided a statement[29] and also gave evidence in person. She confirmed she was in a relationship with the applicant from 2007 until recently. She said that after the death of her brother, she and the applicant were drinking every day. The applicant was also on medication.
  3. Ms Eldridge was questioned about a domestic violence order taken out against the applicant. She admitted the applicant struck her. She said they continued to live together after the order was made (there being no order preventing that). She said the applicant had not been violent towards her since.
  4. Ms Eldridge said the applicant could return to live with her and her mother if he chose to.
  5. Evidence was also given by Stephen Marshall, a service officer, Department of Human Resources. He gave a character reference based on knowing the applicant, through his step-brother, for a number of years.[30]
  6. Several other written references were relied on. In general they spoke to the applicant’s difficult up-bringing, his apparent remorse, and the authors’ confidence that he is reformed.[31]

PRIMARY CONSIDERATIONS

  1. The first of the primary considerations is the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(1), in Part C of the Direction, includes:
“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.”
  1. Paragraph 13.1(2) of the Direction states:
“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. In considering the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including those set out in Paragraphs 13.1.1(1) of the Direction. Most relevant, in this case, are:
  2. Paragraph 13.1.2(2) of the Direction states that in considering the risk to the Australian community, decision-makers must have regard to, cumulatively, (a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and (b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account the matters there referred to.
  3. The respondent contends the applicant's offending has been frequent and lengthy and weighs heavily against revocation of the original decision to cancel his visa. Notably, as the respondent contends, his offending stretches over ten years and covers a range of offences including assaults (including assaulting police), burglary and other property offences, drug offences (including producing and supplying), unlawful use of vehicles and drink driving, traffic offences and breaches of judicial orders.
  4. In this respect, as the respondent submits:
  5. The respondent also highlights the applicant’s criminal conduct has included instances of violence, a matter particularly referred to in Paragraph 13.1.1(1)(a) of the Direction. More particularly, as the respondent contends:
  6. The respondent contends that in addition to the frequency of the applicant's offending, this violent offending is also very serious and should weigh strongly in favour of not revoking the original decision.
  7. The respondent further contends that the custodial sentences imposed by the Maroochydore Magistrates Court on 4 June 2015 further indicate the seriousness of applicant's offending, as appears from Paragraph 13.1.1(1)(c) of the Direction. The sentences on that occasion included 15 months imprisonment for the repeat offence of enter premises and commit indictable offence.
  8. Finally, the respondent submits that the cumulative effect of the applicant's repeated and frequent offending has shown over a significant period of time, a blatant disregard to Australian law within Paragraph 13.1.1(1)(e) of the Direction. In particular the applicant has repeatedly breached bail conditions, has driven whilst disqualified, has driven while intoxicated and has offended while on parole and bail.
  9. The applicant accepts he has an extensive criminal record. He agreed that some of his convictions were for serious offences. Others, he said, were stupid and due to drunkenness. Some he sought to explain through the death of his best friend. He agreed he had engaged in violent conduct. It was pointed out that there had been no offences involving violence since 2010.
  10. I agree with the respondent’s submissions concerning the applicant’s criminal history which I think the applicant fairly and appropriately summarised. I accept that the frequent, lengthy and, at times, violent nature of the applicant's offending, weighs heavily against the revocation of the original decision.
  11. The respondent contends that the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct also weighs strongly against the revocation of the original decision, referring to paragraph 13.1.2(2) (a) of the Direction.
  12. His violent offending, such as using a glass as a weapon while assaulting a man, and allegedly punching and kicking his former partner, was conduct which could cause serious injury or death. The applicant has also been convicted of a number of offences relating to unlicensed driving and, driving while under the influence. The latter conduct, in particular, if repeated, threatens the safety of members of the community.
  13. The respondent also pointed out that the applicant’s property offences, including break and entering, have the potential to cause fear, as well as financial harm.
  14. Paragraph 13.1.2(2)(b) of the Direction requires the Tribunal to have regard to the likelihood of the person engaging in further criminal conduct, including evidence of reoffending and rehabilitation. The respondent contends that it is very likely that the applicant will engage in further criminal and serious conduct and that this weighs heavily against the revocation of the original decision. The applicant’s frequent offending over a long period, in the respondent’s submission, means there is a significant likelihood of re-offending.
  15. In addition to the repeat nature of his offending, the respondent again notes that the applicant has repeatedly breached bail conditions and offended while on parole.[38] The respondent further notes that the applicant has received numerous warnings from the courts in relation to his breaches of court orders.[39]
  16. Finally, the respondent contends the applicant has not taken sufficient steps to address his offending behaviour. In light of the above, the respondent contends that the likelihood of the applicant re-offending is significant and strongly weighs against the revocation of the original decision given the nature of the harm to individuals should the applicant engage in further criminal conduct.
  17. Accordingly, the respondent submits, the first primary consideration, the protection of the Australian community from criminal or other serious conduct, strongly favours a decision to affirm the original decision.
  18. The applicant contends that although he has an extensive criminal history, the risk of re-offending “has been mitigated, at least in part,” by the applicant’s participation and active engagement in rehabilitation programs and psychological treatment.
  19. It is contended that since the applicant’s last offence he has made considered and demonstrable changes to his behaviour and attitude that indicate an awareness of his actions and a genuine desire to alter his course.
  20. The applicant submits the context of his offending is that he had a serious drug addiction and alcohol problem. Since being imprisoned in March 2015, “despite the availability of drugs and alcohol,” the applicant has continued to test negative to the presence of any illicit drugs.
  21. It is submitted that the applicant, throughout his time in prison, enrolled in every available drug and alcohol education course and attended regular psychological assessments and drug tests. He regularly attended Alcoholics Anonymous meetings.[40] He also received responses to letters he wrote concerning assistance in respect of alcohol and drug dependency after his release.[41]
  22. Reliance is placed on a letter from Dr Goldfeder of the Prison Mental Health Service including:
"Mr Gundesen attends for appointments with the Prison Mental Health Service, and has indicated his commitment to addressing his substance use issues and engaging in treatment for PTSD"[42]
  1. In respect of these matters, the respondent accepts that the applicant has participated in various vocational and drug and alcohol courses, but contends that these courses do not address the applicant's violent conduct, and there is no evidence that he has participated in a domestic violence rehabilitation program or violent offenders program.
  2. The applicant also places reliance on the support which it is said can be expected from the applicant’s brother, Ammon Noakes, Lisa Noda, his former partner and her family, and others. It is submitted that this allows confidence to be expressed that the applicant, if permitted to remain in Australia, will obey Australian laws and will not re-offend.
  3. It is further submitted that the risk and the imminent threat of removal from Australia, which until his visa was cancelled the applicant was not aware of, additionally provides substantial deterrence from engaging in any further unlawful activity. The applicant, it is submitted, is capable of improved behaviour and of making substantial changes to his life.
  4. I do not share the confidence that the applicant will not re-offend. His long and frequent record of criminal conduct over many years, the numerous warnings he has been given but failed to heed, his ignoring and defying court orders including bail conditions, all suggest that he will re-offend. To express confidence that he will not re-offend would be to ignore his history.
  5. In my view, despite all that is said on the applicant’s behalf, I think there is a real risk that he will re-offend. I think the risk is probably less in respect of violent crime than other types of offence simply because his past offending has not typically involved violence. That is not to down-play his violent conduct where it has occurred. The applicant’s acts of violence have been serious.
  6. There is a definite risk of the applicant re-offending.
  7. Overall, in my view, the first primary consideration, the protection of the Australian community from criminal or other serious conduct, strongly favours a decision not to revoke the original decision cancelling the applicant’s visa.
  8. The second primary consideration concerns the best interests of minor children in Australia. It was accepted at the hearing that that this was not a consideration in this case. [43]
  9. The third primary consideration is the expectations of the Australian community.[44]
  10. Paragraph 13.3(1) of the Direction provides:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”
  1. The respondent submits that the principles to be applied, as set out in Paragraph 6.3(1) of the Direction, include that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australia community. It is also the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes: Paragraph 6.3(2).
  2. The respondent contends that the Australian community would expect that the applicant's visa be cancelled given the frequency, seriousness and long period of his offending and given the numerous warnings he has received from the Australian courts in respect of his offending and the chances has been given.
  3. So much is true, if consideration is limited to such matters. However the following principle, included in Paragraph 6.3(5) of the Direction, is also relevant:
“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.”
  1. The applicant contends that it is an expectation of the Australian community that persons such as the applicant who have significant ties to Australia, and have been here since childhood, should not be removed from Australia except for the most compelling reasons. That, in my view, goes further than Paragraph 6.3(5) envisages.
  2. In all the circumstances however, and obviously taking into account that the applicant has lived in Australia for virtually all his life, and that outwardly at least he is attempting to reform, I do not think this consideration should weigh heavily against refusing to revoke the original decision.

OTHER CONSIDERATIONS

  1. Paragraph 14 of the Direction, as referred to above[45], provides a non-exhaustive list of other considerations which must be taken into account where relevant. The applicant contends that the following are relevant:
  2. It is not disputed that for most of his childhood the applicant was a ward of the State and lived in foster homes. The applicant began offending in 2005, 14 years after he arrived in Australia, and 11 years after he became a ward of the State. The applicant’s evidence, which is not disputed, is that until he received notice concerning cancellation of his visa in 2015, he believed he was an Australian citizen. He had no prior warning or any idea that he was at risk of being removed from Australia.
  3. The respondent accepts that the applicant has strong ties to Australian citizens, namely, his brother, his former partner’s family, and his friends, and that this weighs in favour of revocation of the original decision. The applicant’s removal will also have an impact on his family and friends. The argument of the applicant having ties with Australia is further strengthened by the fact that until recently he thought he was an Australian citizen.
  4. There is evidence of his involvement in community clubs growing up. The applicant has provided a reference from a previous employer. However I accept the respondent’s submission that, given his criminal history, there is very limited evidence that the applicant has spent time positively contributing to the Australian community.
  5. There is evidence, as I have said, indicating the applicant has been attempting to reform since his incarceration. I accept the submission that the threat of removal from Australia, and his time in prison, have provided the motivation.
  6. The medical reports in respect of the applicant’s prospects of rehabilitation refer to the benefit a support network plays. Although the applicant accepts New Zealand may have equivalent medical systems in place, he has no surviving relatives and no ties whatsoever to New Zealand. It is also submitted that in the absence of any contact with a support network, the applicant’s psychiatric state will deteriorate.
  7. Dr Stefan Goldfeder, in his report dated 31 August 2015, says:
"Mr Gundesen reports no family contact or support in New Zealand. He has identified definite support from his partner in Australia, and engagement with work and clinical services in Australia.
I anticipate that were he to be moved to New Zealand, then there is a high risk of a significant deterioration in his mental state. The basis for this is the consequent dislocation and alienation that would reinforce his state of rejection; his lack of knowledge and lack of identification with New Zealand Culture; loss of personal attachments, his lack of personal supports; no clinical records; uncertain future and likely homelessness; and the stress and delays that registering or intake procedures in the New Zealand health system would entail, and difficulties in engaging him in treatment."[46]
  1. Dr Goldfeder, in his report dated 7 December 2015 says:
"Mr Gundesen attended appointments with the Prison Mental Health Service, and indicated his commitment to addressing his substance use issues and engaging in treatment for his PTSD. He has been unduly stressed by the circumstances of his deportation, alienating him from his supports, which has exacerbated his depression, anxiety and anger.
...
I anticipate that deportation will prove challenging to Mr Gundesen's mental state, and may estrange him from accessing government services... If possible, he would benefit from material assistance with social and vocational engagement example a job and appropriate support network, if not, facilitated contact with his supports in Australia."[47]
  1. The respondent acknowledges the applicant may suffer hardship in relocating to New Zealand but points out that, as a New Zealand citizen, he is likely to be eligible for social and health services provided by New Zealand to its citizens (services that are of a similar standard to those in Australia). That may be true, but the applicant would still have considerable difficulty establishing himself in New Zealand which has never been his home and having regard to his mental health.
  2. I think these matters weigh heavily in favour of revoking the original decision cancelling the applicant’s visa.
  3. There is no evidence that any of the other considerations specifically mentioned in Paragraph 14 of the Direction have any relevance. I refer here to international non-refoulment obligations, impact on Australian business interests, and impact on victims of the applicant’s criminal conduct.

CONCLUSIONS

  1. I take into account the weight to be given to the primary considerations under the Direction, and that generally less weight is to be given to the other considerations. The applicant has a long criminal record involving many criminal convictions over a long period of time. Some of those offences involved violence or other serious criminal conduct. There is evidence that he is attempting to reform, and to break his drug and alcohol dependency, substantially motivated by his imprisonment in 2015 and the threat of being removed from Australia. He does still pose a risk to the Australian community, and protection of the community is a primary consideration.
  2. However he arrived in Australia at less than two years of age in 1992 and has known no other home. He believed he was an Australian citizen until the commencement of procedures to return him to New Zealand in 2015. He has no relatives or friends in New Zealand to provide him with any support. He does have friends and family in Australia, including a brother who is an Australian citizen, able and willing to provide the support that he obviously needs when he is released from incarceration. He has been dependent on alcohol and drugs. Whether or not that dependency has ceased, he will at least require support to achieve long-term rehabilitation. I also take into account the need for support in respect of his mental state as referred to in the medical evidence.
  3. Taking into account the primary and other considerations in the Direction, and giving such matters appropriate weight, I find the correct and preferable decision is to set aside the decision under review and to revoke the original decision cancelling the applicant’s visa.
  4. The decision under review made on 8 February 2016 is set aside and replaced with a decision to revoke the decision dated 30 July 2015 to cancel the applicant’s visa made under s 501(3A) of the Migration Act 1958.

I certify that the preceding 96 (ninety -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President I R Molloy

...........................[Sgd].............................................
Associate

Dated 24 October 2016.

Date of hearing
8 August 2016
Solicitors for the Applicant
K & L Gates
Solicitors for the Respondent
Clayton Utz

[1] Exhibit 1, T-Documents, T2, 49-56.

[2] Exhibit 1, T-Documents, T2, 122.

[3] Exhibit 1, T-Documents, T2, 58.

[4] Exhibit 1, T-Documents T2, 49.

[5] Exhibit 1, T-Documents, T2, 66, 70-72, & T8, 343.

[6] Exhibit 1, T-Documents, T2, 56.

[7] Paragraph 6.1(4).

[8] Paragraph 13(2).

[9] Paragraph 8(2).

[10] Paragraph 8(3).

[11] Paragraph 8(4).

[12] Paragraph 8(5).

[13] Exhibit 3, Applicant’s statement, paragraph 6.

[14] Ibid, paragraph 14.

[15] Ibid, paragraphs 16 & 17.

[16] Ibid, paragraph 18.

[17] Exhibit 1, T-Documents, T2, Report of Dr Andrew Byth, 126-136.

[18] Exhibit 3, Applicant’s statement, paragraph 50.

[19] Exhibit 3, Applicant’s statement, paragraph 60.

[20] Ibid, paragraph 54.

[21] Ibid, paragraph 64.

[22] Ibid, paragraph 65.

[23] Exhibit 5, Statement of Ammon Noakes, 12 June 2016.

[24] Exhibit 1, T-Documents, T2, 240.

[25] Exhibit 1, T-Documents, T2, 250-1.

[26] Exhibit 1, T-Documents, T2, 252-3.

[27] Exhibit 1, T-Documents, T2, 251.

[28] Exhibit 4, Statement of Lisa Noda, dated 16 June 2016.

[29] Exhibit 1, T-Documents, T2, 206-9.

[30] Exhibit 6, Statement of Stephen Marshall, undated.

[31] Exhibits 7-13, Written references from individuals.

[32] Exhibit 1, T-Documents, T2, 66-69.

[33] Ibid.

[34] Ibid.

[35] Exhibit 1, T-Documents, T2, 67.

[36] Exhibit 2, page 15.

[37] Exhibit 2, pages 199, 210-211.

[38] Exhibit 1, T-Documents, T2, 66; Exhibit 2, 256 & 345.

[39] E.g. Exhibit 1, T-Documents, T2, 244-5; Exhibit 2, 115.

[40] Exhibit 1, T-Documents, T2, 218.

[41] Exhibit 1, T-Documents, T2, 227, 228.

[42] Exhibit 1, T-Documents, T2, 250.

[43] Paragraph 13(2) of the Direction.

[44] Ibid.

[45] Paragraph 14.

[46] Exhibit 1, T-Documents, T2, 250-251.

[47] Exhibit 1, T-Documents, T2, 252-253)

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