Seng and Minister for Immigration and Citizenship [2009] AATA 309 (5 May 2009)

Last Updated: 5 May 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 309

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/0624

GENERAL ADMINISTRATIVE DIVISION )

Re Piseth SENG

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date 5 May 2009

Place Sydney

Decision The decision under review is affirmed.

..................[sgd]..................
Professor GD Walker
Deputy President

CATCHWORDS

IMMIGRATION – visa cancellation – whether the applicant passes the character test in s 501(6)(a) of the Act, given his substantial criminal record as defined in s 501(7) of the Act - whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 21 – three primary considerations – prior good record less significant on recidivism risk of a heroin courier – little involvement in child’s upbringing - other considerations - decision under review is affirmed

...

RELEVANT ACT:

Migration Act 1958 (Cth) (the Act): ss 499, 501

CITATIONS

Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Green v Minister for Immigration and Citizenship [2008] FCA 125

Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56

R v Leroy (1984) 13 A Crim R 469

Al-Kateb v Godwin (2004) 219 CLR 562

Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766

Robtelmes v Brenan (1906) 4 CLR 395

Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054

Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458

Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133

Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608

Re Blanco and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 989

...

OTHER AUTHORITIES

Direction No 21

...

REASONS FOR DECISION

5 May 2009	Professor GD Walker, Deputy President
Basic facts

1. The applicant Mr Piseth Seng was born in Cambodia in June 1962. Together with his mother and two sisters, he migrated to New Zealand in 1980 at the age of 18 and is a citizen of that country. He attended school in Cambodia to Year 8 and spent a year in the army there but did not work until moving to New Zealand, where he was employed in an automotive factory for eight years. After being retrenched he worked with a number of other companies in the electronic data processing industry.
2. He was married in New Zealand in 1984 and has two children. The marriage was dissolved in 1993 and he is not currently married or in a de facto relationship. He first visited Australia on 30 November 1990 and has returned on a number of occasions. His most recent arrival in Australia was on 2 September 2006 as the holder of a subclass 444 special category visa.
3. The applicant was arrested on arrival from Cambodia on 2 September 2006 and was found to be carrying 71 internally concealed pellets of heroin amounting to 63.1 grams of pure heroin. He was convicted of importing a marketable quantity of a controlled drug on 13 April 2007 and was sentenced to five years and six months' imprisonment with a non-parole period of three years, which was reduced on appeal to a head sentence of five years and a non-parole period of two years and six months.
4. On 20 January 2009 a delegate of the respondent cancelled the applicant’s visa on the ground that he had a substantial criminal record as defined by s 501(7) of the Migration Act 1958 (Cth) (the Act). He applied to this tribunal for review of that decision on 19 February 2009. He is currently detained in Villawood Immigration Detention Centre.
5. At the hearing the applicant appeared in person while Mr Greg Johnson of DLA Phillips Fox represented the respondent. The documents before the tribunal comprised the documents produced pursuant to s 501G of the Act (“the G documents”), taken into evidence as Exhibit A1, together with the other documents tendered by the parties at the hearing. The applicant gave oral evidence in person, with his son Mr Darren Seng providing his oral evidence by telephone. An interpreter was not required.

Issues

6. The issues in this case are:
   • (i) whether the applicant passes the character test in s 501(6)(a) of the Act, given his substantial criminal record as defined in s 501(7) of the Act; and if not,
   • (ii) whether the tribunal should exercise its discretion to set aside or affirm the decision made by the delegate of the minister to cancel the applicant’s visa, applying ministerial Direction No 21.

Relevant law and policy

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

...
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7); or
...
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; ...
...

8. “Substantial criminal record “ is defined in s 501(7) as follows:

...
(7) For the purposes of the character test, a person has a substantial criminal record if:
...
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; ...
...

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

The applicant’s evidence

11. At the hearing the applicant adopted his statement of 20 March 2009 (Exhibit A2) together with two earlier statements (G pp51-52, 53). In them he wrote that he had spent only a short time in Australia and had no prior criminal record. One of his two sons was born in Australia and is living with his mother (the applicant’s ex-wife) in Melbourne. He worked as a taxi driver for 15 years and while in New Zealand also worked for a Cambodian welfare association for about nine years. He was highly respected at that time.
12. During his last visit to Australia in 2006 he was charged with an unlawful breach of border security control, but had never planned or intended to commit the offence. He was duped by someone and during his two years and six months' imprisonment was depressed and was deeply regretful for what he did. He wished to apologise to the community and said that he had rehabilitated himself by participating in a number of programs and in computer training.
13. He did not believe he could return to his community in Wellington, New Zealand, because of his criminal record. He has strong links with Australia and a good relationship with his son and his relatives living here. He wished for another chance to live in Australia so that he could be closer to his younger son and support him in the future. He promised to be a good citizen and not to offend in the future.
14. At the hearing the applicant said he had come to Australia with his wife in November 1992 intending to move to this country, but returned to New Zealand five months later because his wife was having an affair (with his half brother). His son Darren was born in Australia and is now 17. The applicant had arrived in Australia a little after his wife and after the birth of the child, as he was attempting to sell his New Zealand business at the time.
15. After his return to New Zealand in April 1983, they were divorced, his ex-wife remaining in Australia. He had spent most of his time in New Zealand, visiting Australia from time to time to see his son. Darren had in turn visited New Zealand a few times to be with him from the age of nine years onwards, remaining for periods of up to a month.
16. The applicant had visited Australia about five times including the current stay, and on each occasion he visited Darren in Melbourne.
17. Darren is currently at school in Year 11. He has not spoken to Darren since telephoning him in 2008 and has not seen him in person since his last visit to New Zealand. He did not know what Darren’s current interests were or what school he was attending.
18. The applicant has no contact with his ex-wife but occasionally speaks to his half-brother, but relations with him are strained because his affair with the applicant’s ex-wife destroyed their marriage. In Melbourne the applicant also has some cousins, with whom he has rather more contact. He has no family in Sydney.
19. Most of his family lives in New Zealand: his mother, two sisters, and his son Daniel, who was born in 1984 and is now about 25. He also has a niece and a cousin and has contact with all his New Zealand relatives except the cousin.
20. He also has a cousin in Cambodia, and was last in touch with him about three years ago.
21. In 2006 he had travelled to Cambodia to develop a relationship with a woman he had met on his previous visit to that country. He was offered free accommodation and expenses in Cambodia, together with an air ticket to Australia if he carried some substance, but did not know what it was. He had seen a chance to visit his son in Australia and was tricked into co-operating with the smuggling operation. He knew that he was carrying a prohibited substance but did not know it was heroin until a couple of days before his departure, by which time his flight had been booked. He had then felt it would be difficult to refuse to carry out the arrangement and knew that he would be in trouble either way.
22. As a result he had spent two years and six months in jail, but had no other criminal record. He had not had any contact with the suppliers since then and had never used drugs. He confirmed that he had met the dealer, Mr Sothia Choun, in Wellington as a brother of a friend of his, but no longer had any contact with the friend.
23. The applicant said he wished to remain in Australia but did not deny that he had spent no significant time here. He explained that he could not face his community in New Zealand and would not be welcomed by them. Asked whether his relatives in Australia would also not welcome him, he replied that the people here did not know his record.
24. He agreed that the Wellington Cambodian Association had written a letter of support dated 15 December 2006 (G p59) outlining his constructive role in community youth work and other efforts, and praising his personal qualities. But he countered that while the community still supported him, that was only for the purpose of mitigating his jail sentence, and their support would not continue after his release.
25. Asked whether, by remaining in Australia, he would be leaving his New Zealand family behind, he replied that he wanted to be with his younger son. If he were in New Zealand the relationship would be different, even though in recent times his only contact had been by telephone, as it would be if he were in New Zealand. If he lived closer, he would be able to take care of Darren.
26. He did not accept that it would be possible for him to live in New Zealand outside Wellington, saying that everyone would know him, that he would have difficulties and would feel ashamed and disgraced. They would not give him problems as such, however. He admitted that he was not, however, sure about how they feel about him now and had not spoken to the association’s new chairman.

Applicant’s supporting evidence

27. The applicant’s younger son Darren Seng in oral evidence by telephone adopted his brief statement (Exhibit A3). He said he had been born in Australia and had lived his whole life in Melbourne. He was now aged 17 and would turn 18 in November. He was in Year 11 at school and lived with his mother and grandmother.
28. He had last spoken to the applicant last week in connection with the present proceedings but had been speaking to him weekly over the past few years. He last saw his father two or three years ago when he was visiting New Zealand. He had visited that country for a week or two, on three or four occasions over the years. He had never seen his father in Australia.
29. In their telephone discussions they talk about family matters and how they would like to see each again. His father plays a big role in his life and has taught him a great deal. He asks about his progress at school and encourages him to attend university, which he intends to do, to undertake a course in accounting.
30. The applicant’s half-brother Mr Samnang Seng in a brief statement dated 23 March 2009 (Exhibit A5) stated that he had found the applicant to be of good character.

Applicant’s submissions

31. The applicant stated that he did not disagree with much of the case advanced by the respondent, but maintained that he does have strong links with Australia because of the presence here of his son and other relatives. He had not seen his son for a long time, but wants to be with him and they do talk on the telephone.
32. The offence of which he had been convicted had not been planned but had simply happened. He wanted another chance and assured the tribunal that it would not happen again.

Application of the law and findings of fact

33. As was stated above, the first issue for me to decide is whether, pursuant to s 501(6)(a), the applicant passes the character test, having regard to his substantial criminal record.
34. Secondly, I am required to have regard to Part 1 of Direction No 21 as a guide to the application of the character test. If I decide that the applicant does not pass the character test, I must consider whether to exercise the discretion in s 501(2) to cancel the applicant’s visa. In so doing, I must have regard to Part 2 of Direction No 21 as a guide to the exercise of its discretion.
35. In this case the applicant was convicted on 13 April 2007 in the District Court of New South Wales of importing a marketable quantity of heroin and was sentenced to five years, six months' imprisonment with a non-parole period of three years, reduced on appeal to five years' imprisonment with a non-parole period of two years, six months, backdated to the date of his arrest. Consequently he does not pass the character test because of his “substantial criminal record” within s 501(7). He did not dispute that he failed the test.
36. I must therefore consider whether to exercise my discretion under s 501(2) to decide whether or not to cancel the applicant’s visa. In exercising that discretion, the tribunal has regard to Part 2 of Direction No 21. Paragraph 2.2 provides that a decision-maker should have regard to three primary considerations and a number of other considerations:

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

37. Paragraph 2.3 sets out the primary considerations:

...
In making a decision whether to refuse or cancel a visa, there are three primary considerations:
(a) the protection of the Australian community, and members of the community;
(b) the expectations of the Australian community; and
(c) in all cases involving a parental or other close relationship between a child or children and the person under consideration, the best interests of the child or children.
...

Paragraph 2.4 explains:

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

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

Protection of the Australian community

40. The first issue to be discussed under this heading is the seriousness and nature of the conduct. It is necessary to apply Direction No 21, which was made pursuant to s 499 of the Act. The direction, which is binding on this tribunal, states in paragraph 2.6(a) that the importation of illicit drugs by non-citizens seeking to profit from the conduct is extremely serious.
41. In this case, the applicant was convicted of importing a marketable quantity of heroin and sentenced to five years and six months' imprisonment, later reduced to five years with a non-parole period of two years and six months. He has never used drugs himself and received no money payment for the transaction, but accepted material benefits in the form of spending money and accommodation in Cambodia over a period of months, together with an air ticket to Australia and the promise of expenses while in Australia.
42. On arrival in Australia the applicant was found to have swallowed 71 pellets of heroin wrapped in water balloons and plastic with a gross weight of 87.8 grams and a purity of 71.9 percent, equalling 63.1 grams of pure heroin. Its estimated street value was in the range of $52,500 to $220,500. A marketable quantity of heroin was two grams and a commercial quantity was 1.5 kilograms. The maximum penalty for the offence was imprisonment for 25 years and/or a fine of $550,000.
43. The applicant in June 2006 had met Mr Sothia Choun in Wellington, New Zealand. Choun had offered to pay for the applicant to travel to Cambodia where he wished to see a woman, Ms Van, with whom he had formed a relationship. He decided to pay for his own air ticket to Cambodia but accepted Choun’s offer of accommodation and spending money. The applicant remained in Cambodia for about three months. He was then invited to come to Australia at Choun’s expense. He had accepted because it would allow him to see his younger son who was living in Melbourne with the applicant’s ex-wife (G p82).
44. Choun paid for the applicant’s air ticket to Australia and offered to pay his expenses in Australia. Shortly before he was due to leave Cambodia, the applicant was asked to swallow the pellets. He said he felt an obligation to do so in return for the hospitality provided to him in Cambodia. He admitted that he had made a conscious decision on the matter.
45. The applicant said he did not know until a day or two before departure that the pellets contained heroin. At the same time, he admitted knowing that he was being asked to carry a prohibited substance.
46. The tribunal is also to take into account any relevant matters provided by the applicant as mitigating factors (para 2.8(a)). They should be viewed in the context of the applicant’s entire record (Green v Minister for Immigration and Citizenship [2008] FCA 125 at [25]- [26]). The only mitigating factor advanced by the applicant was that the offence was not planned, and that it had “just happened”.
47. I accept that the applicant was not an instigator of the transaction and did not explicitly volunteer for it. He did, however, allow himself to be manipulated into it and acknowledged that he had made a conscious decision to co-operate. Although he may not have known the substance was heroin until a day or so before departure, he undoubtedly knew he was being asked to carry a prohibited substance.
48. The next issue for the tribunal to consider is the risk of recidivism. The applicant has no other criminal convictions. Nevertheless, as President Mathews J said, “Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending” (Re Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51]).
49. Further, the courts have made it clear that absence of a prior criminal record carries less weight in relation to drug courier offences than in other areas of the criminal law. As the New South Wales Court of Criminal Appeal put it in R v Leroy (1984) 13 A Crim R 469:

...
This court and other criminal courts have said on many occasions that, in the drug traffic in particular, the circumstances that the accused person has a clear earlier record will have less significance than in other fields of crime. Very frequently, those selected to play some part in the chain of drug trafficking, as the appellant plainly enough was, are selected because their records, their past and their lifestyles are not such as to attract suspicion. It is this in particular which has led the courts to take in the case of drug trafficking a view which does not involve the same degree of leniency being extended to first offenders.
...

50. The applicant pleaded guilty to the charge and I accept that he is genuinely remorseful for his offence. While in jail he completed a number of rehabilitation courses, including occupational health and safety, getting SMART, food hygiene, anti-violence and personal computer operation. He did not indicate where he would propose to live if released into the community, but I assume that one of his Melbourne cousins might accommodate him, at least on a temporary basis. He did not say that he had any offers of employment or membership of any support organisation.
51. On behalf of the minister, Mr Johnson very properly conceded that the applicant’s recidivism risk lies towards the lower end but submitted that the applicant had committed the offence to obtain a (non-monetary) benefit and had known he was breaking the law. The seriousness of the offence of heroin importation should be regarded as relevant to the risk of recidivism. I accept that submission.
52. In relation to the protection of the Australian community, the tribunal is also required to consider the question of general deterrence, the likelihood that visa refusal would prevent or inhibit the commission of similar offences by other persons: Direction No 21 paragraph 2.11. The deterrent effect of a particular decision is impossible to prove in advance. The concept can perhaps also be expressed in positive form by saying that if bad behaviour is rewarded, there will be more of it. That is a principle well known to parents, teachers, managers and most other members of the community.
53. Its incorporation in Direction No 21 may be simply a reflection of the need for decision-makers to consider the long-term effects of their decisions, not merely the short-term results. While visa cancellation is not intended as a punishment, paragraph 2.11 of the direction plainly contemplates that the prospect of it will operate to deter similar conduct in much the same way as the threat of punishment does.
54. As Callinan J observed in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at 659, “Deterrence may be an end in itself unrelated to a criminal sanction or a punishment. Deterrence can, for example, be an end of the law of tort”.
55. Although general deterrence cannot be a decisive, or even a substantial, factor in the exercise of the discretion, the particular need to deter offences such as heroin importation makes it necessary to take it into account as a relevant factor.
56. The community protection factor overall weighs heavily in favour of visa cancellation in this case.

Expectations of the Australian community

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

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

58. It has long been accepted on all sides in Australia that migration must be conducted in a legally regulated manner. Historical, economic and other reasons for that position have been advanced: Re Zhou and Minister for Immigration and Citizenship [2007] AATA 1766 at [90] to [99].
59. In Al-Kateb, Hayne J observed that in one of its earliest decisions (Robtelmes v Brenan [1906] HCA 58; (1906) 4 CLR 395), the High Court had held that it is an attribute of sovereignty that every nation state is entitled to decide what aliens shall or shall not become members of its community (219 CLR at page 632).
60. Callinan J added that entering aliens are taken to know and accept “as a term of admission” that restraint to the extent necessary to enable deportation to be imposed on them (at p658).
61. At the same time, there is an expectation in the community that migration law will be administered fairly and humanely (Re Leha and Minister for Immigration and Multicultural Affairs [2000] AATA 1054 at [34]). A further limiting factor is that one should attribute to the community knowledge of the whole of the evidence before the tribunal (Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458 at para 7(m)).
62. In my view the community would expect that the visa of a person undertaking such a serious offence for personal gain, who has only limited links with Australia and has spent only a few months here before his arrest, should be cancelled.

The best interests of the child

63. The third primary consideration is the best interests of the child. The tribunal is guided on this question by the decision of the Full Federal Court in Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568; (2001) 107 FCR 133, following the decision of the Full Federal Court in Vaitaiki v Minister for Immigration and Ethnic Affairs (1998) 150 ALR 608. In Wan at paragraph 32, the Court made it clear that the approach to be adopted in cases involving children is, first, to identify what are the best interests of the child or children with respect to the exercise of the discretion not to refuse the grant of a visa and, second:

“[T]o assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweighed the consideration of the best interests of the children understood as a primary consideration”.

I also note paragraph 2.16 of Direction No 21, which sets out considerations that the decision-maker must take into consideration when considering the best interests of a child including the duration of the relationship between the non-citizen and the child and the length of any separation and reasons for that separation (paragraph 2.16(b)).

64. The applicant has one child under 18, his son Darren, aged 17, who is an Australian citizen living in Melbourne with his mother, the applicant’s ex-wife. The applicant has not seen Darren for some time, perhaps three or four years. There was some inconsistency between the evidence of the applicant and Darren as regards the frequency of their telephone conversations. The applicant said he had not spoken to Darren since last year, whereas Darren said they spoke by telephone every week. Not a great deal turns on that inconsistency, but while it is clear that the applicant would like to have a closer relationship with Darren, it is plain that he knows little about Darren's circumstances and has little everyday significance in his life. They may never have seen each other in Australia and such contact as they have had has been wholly by telephone.
65. Darren has lived almost his whole life in Australia without his father. The applicant was not in Australia during Darren's formative years, being out of the country between May 1996 and September 2006. While Darren has visited the applicant several times in New Zealand, he has grown up without the applicant’s substantial involvement in his life.
66. In a rather similar situation the tribunal has held that the applicant could contribute little to the child’s welfare if allowed to remain in Australia: Re Blanco and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 989 at [37].
67. It should also be noted that Darren will turn 18 in a little over six months from now.
68. In my view the best interests of the child in this case do not weigh significantly against visa cancellation.

Other considerations

69. With regard to the other considerations to which a decision-maker is directed by Direction No 21, paragraph 2.17 states that, where relevant, “it is appropriate that these matters be taken into account but that generally they be given less individual weight than that given to the primary considerations”. These other considerations include: the extent of disruption that the visa refusal or cancellation would cause to the non-citizen’s family; genuine marriage to an Australian citizen, bearing in mind the circumstances under which the relationship was established and whether the Australian partner knew that the non-citizen’s character was of concern at the time of entering into the relationship; the degree of hardship caused to immediate family members; the family composition of the non-citizen’s family, both in Australia and overseas; and any evidence of rehabilitation and any recent good conduct.
70. The applicant has not previously been warned about the possibility of visa cancellation.
71. He has spent only about eight months in total in Australia and no doubt partly for that reason has no business or similar connections that would be disrupted by his repatriation. At the time of his trial it was thought he was suffering from depression resulting from incarceration and the pending proceedings (G p83), but there are no other relevant compassionate circumstances.
72. He has no clear employment plans or accommodation arrangements (G p89).
73. He undertook a number of relevant and useful courses while in jail and appears genuinely remorseful for his offence. There is thus some evidence of rehabilitation, but the seriousness of the offence makes the community protection factor weigh in favour of visa cancellation nevertheless.
74. He has a half-brother in Melbourne who wrote a brief letter of support for him, but, given his role in the break-up of the applicant’s marriage, they could not be described as being on good terms. He also has some cousins in Melbourne but there is no evidence to show that the relationship with them is close. Most of his family live in New Zealand, including his mother, two sisters, one son, a niece and cousin.
75. He states that he would not be accepted by his community in Wellington but there is no evidence to support that proposition. The Wellington Cambodian Association wrote a letter of support for him in connection with his sentencing hearing and the applicant did not point to any evidence to show that their attitude had changed or that there was animosity towards him, and no suggestion that he might be exposed to harm.
76. The applicant states that he could not live in New Zealand in some place other than Wellington because all Cambodians would know about his record. One would think the same would be true in Australia, where his relatives and contacts have more reason to know that he served a jail sentence and why. His expressed belief to the contrary is implausible.
77. I find that the primary considerations of community protection and expectations outweigh the best interests of the child and the other considerations in this case.
78. The decision under review is affirmed.
    

I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker, Deputy President.

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

Adele Veness, Associate

Date of Hearing: 14 April 2009

Date of Decision: 5 May 2009

Solicitor for the Applicant: Self-represented

Solicitor for the Respondent: Mr G Johnson, DLA Phillips Fox