Amoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2022] AATA 56

Amoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 56 (17 January 2022)

Division:GENERAL DIVISION

File Number(s):      2021/8087

Re:Tangaroa Rhys Jordan Amoa

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:17 January 2022

Place:Sydney

The decision under review is affirmed.

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

Chris Puplick AM, Senior Member

CATCHWORDS

MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction 90 – protection of the Australian community – nature and seriousness of offending conduct – risk of reoffending – expectations of the Australian community – impediments to removal – strength, nature and duration of ties to Australia – decision affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 500, 501 and 501CA

CASES

CFHQ AND MINISTER FOR HOME AFFAIRS (MIGRATION) [2018] AATA 3858

CONTRERAS V MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2015] FCAFC 47

CZCV AND MINISTER FOR HOME AFFAIRS (MIGRATION) [2019] AATA 91

DHARMA AND MINISTER FOR HOME AFFAIRS [2018] AATA 2757

Falzon v Minister for Immigration and Border Protection [2018] HCA 2

FHHM V MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS [2021] FCA 775

FYBR V MINISTER FOR HOME AFFAIRS [2019] FCAFC 185

HANDS V MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2018] FCAFC 225

MENDOZA AND MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2018] AATA 666

MEYRICK V MINISTER FOR HOME AFFAIRS [2020] FCA 677

MINISTER FOR ABORIGINAL AFFAIRS V PEKO-WALLSEND LTD (1986) 162 CLR 24

MINISTER FOR HOME AFFAIRS V HSKJ [2018] FCAFC 217

MINISTER FOR IMMIGRATION AND CITIZENSHIP V SZJSS [2010] HCA 48

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS V GUO WEI RONG (1997) 144 ALR 567

PAERAU V MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2014] FCAFC 28

PGDX V MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS [2021] FCA 1235

R V SAUNDERS [2017] SASCFC 86

SEBASTIAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS [2005] FCAFC 31

SULEIMAN V MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2018] FCA 594

SON AND MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS (MIGRATION) [2021] AATA 2947

TANIELU V MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2014] FCA 673

TEWHARE AND MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS (MIGRATION) [2021] AATA 2875

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Chris Puplick AM, Senior Member

17 January 2022

1. Mr Tangaroa Rhys Jordan Amoa (the Applicant) is a citizen of New Zealand (Aotearoa). His parents are originally from the Cook Islands, although his mother currently also holds Australian citizenship and is an Australian resident. He states that he only met his father once in his life and it does not appear that he has any siblings. He is a single man, although he has three children.

2. The Applicant was born in August 1991 and between 1999 and 2008 he visited Australia on a number of occasions. He arrived in Australia for the last time in August 2008 (aged 17 years) and has not left this country since. He is the holder of a Class TY Subclass 444 Special Category (Temporary) visa which is available to New Zealand citizens.

3. On 12 January 2021 the Applicant’s visa was subject to mandatory cancellation under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) following his conviction on 18 November 2020 of various offences resulting in the imposition of a term of imprisonment of 20 months (with 10 months non-parole).

4. Subsection 501(3A) of the Act provides that the Minister (the Respondent) must cancel the visa of a visa-holder who has been convicted to a term of imprisonment of 12 months or more on the basis that they are defined as thus having “a substantial criminal record”. Being so convicted and having a substantial criminal record means that a person has failed the “character test” set out in subsection 501(6) of the Act. Visa cancellation in these circumstances is mandatory and the cancellation occurred on 12 January 2021.

5. The Act goes on to provide that where a person has had their visa cancelled on character grounds they may appeal to the Minister for a revocation of that visa cancellation if there is “another reason” why that should occur. In doing so they are invited to make representations in support of the cancellation revocation, and the Applicant did so. The Minister received these representations on 5 February 2021.

6. Those representations were considered by a Delegate of the Minister who, on 26 October 2021 found that there was no other reason why the visa cancellation should be revoked.

7. On 29 October 2021 the Applicant applied to this Tribunal for a review of that decision. The matter was heard on 5 January 2022 using the Microsoft Teams platform and in accordance with the Tribunal’s COVID-19 protocols. The Applicant was at the time in immigration detention on Christmas Island. Apart from the material submitted by the Applicant requesting the Minister’s reconsideration of his visa cancellation,[1] no new material was put to the Tribunal by him. He represented himself as best he could and did not call any witnesses on his behalf.

   [1] As provided in the Section 501G ‘G’ documents (G-documents).

8. As required by paragraph 500(6L)(c) of the Act a determination of this matter must be made by the Tribunal by 18 January 2022, otherwise the decision under review is taken to be affirmed.

   VISA CANCELLATION: PROCESS AND THRESHOLD

9. Cancellation of a visa in these circumstances is a two-stage process. The first involves a determination, as a matter of fact, that a visa-holder has been sentenced to a term of imprisonment of 12 months or more. If that is the case, then the person is deemed to have failed the character test and their visa is cancelled automatically. The second stage is a consideration of whether “another reason” exists for that decision to be revoked.

10. There is no disagreement that the Applicant fails the character test by reason of his sentencing on 18 November 2020, which led to his “substantial criminal record” and so the only task now before the Tribunal is consideration of the Applicant’s representations that “another reason” exists why that decision should not be affirmed.

11. Before turning to consider the claims made by the Applicant in support of his application for the visa cancellation to be revoked, it is necessary to set out in some detail the facts regarding the Applicant’s life story and his offending history.

    LIFE HISTORY

12. The Applicant has provided scarce information about his life history other than to note that he claims to have only met his father on one occasion, although details of that are not specified. Nevertheless, he claims that he had a harsh upbringing. He writes:

    “My childhood was very tough for me, At the age of 4 years I have phycicly beaten (sic) till the age of 13 years of age. My family harsh and strict on me where my bad beatings as a minor child has caused me so many traumas in my life relapses. I in my past have not understood my emotions and causes to my behaviours. As a child Ive seen family members engage in sexual activities, family violence, domestic violence as a child. I have been traumatized in these things that was happening in my life. I am the only child born to my mother as I arrived in Australia with my mother in 1997. My mother is the oldest of her three siblings. I was the only child. In family housesholds [sic] seeing violence and violence being brought on myself from uncles aunties grandpa grandma my grandparents have past [sic] away.[2] When I was brutally beaten I had nobody to explain comfort me after times I was beaten as my mother left me to stay with grandparents and her siblings at 4 years of age due to my mother being here in Australia working and saving for my arrival later on. Violence happened around me as I was very scared, violence was taken out on me at times for myself I use [sic] to scream for help when beaten up by my family I just had to put up with it as I was a child I was traumatized my emotions was broken out of me my mental health was dismantled and by that my future life would be affected and confusing up till now 12/05/21 29 years later.” [3]

    [2] This is apparently a reference to great-grandparents who had some role in his upbringing as his mother’s parents are both alive.

    [3] G-documents at 125-126. The Tribunal notes that this statement has been reproduced as accurately as possible, with minor formatting changes to improve clarity.

13. During his time in Australia the Applicant has had limited periods of employment, primarily in the construction industry undertaking work as a scaffolder and painter.

14. The Applicant has three children to two separate mothers and is responsible for paying child support in relation to two of them.[4] The nature of this family relationship is discussed below.

    [4] Ibid at 148-149.

    OFFENDING HISTORY

15. The Applicant has a lengthy history of offending commencing in November 2009, just fifteen months after his arrival in Australia on a permanent basis.

16. The relevant details of his offending behaviour are as follows:[5]

    [5] Ibid at 58-62; Respondent’s Statement of Facts, Issues and Contentions (SFIC).

Date

Offence

25 November 2009

The Applicant was convicted of two counts of assault occasioning actual bodily harm (ABH) and affray. He was sentenced to a 12 month control order, suspended for 12 months, and 12 months’ supervision by parole services.

21 September 2010

The Applicant was convicted of affray and receiving stolen property. He was sentenced to a six month control order.

12 November 2010

The Applicant was convicted of robbery in company. He was sentenced to 3 years' imprisonment with a non-parole period of 1 year.

14 December 2012

The Applicant was convicted of assault occasioning ABH. He was fined $500.00 and was placed on a good behaviour bond for 12 months.

7 May 2013

The Applicant was convicted of destroying or damaging property and of being an excluded person remaining in the vicinity of licensed premises. He was fined $250.00, ordered to undertake 100 hours of community service and to pay $400.00 in compensation.

5 February 2015

The Applicant was convicted of possessing a prohibited drug. He was fined $1,200.00.

25 June 2015

The Applicant was convicted of destroying or damaging property and two counts of common assault. He was ordered to undertake 180 hours of community service, pay $2,000 in compensation, and was placed on a two year good behaviour bond.

5 May 2016

The Applicant was called up on his previous two convictions for common assault and was given a fresh two year good behaviour bond.

17 June 2020

The Applicant was convicted of common assault (DV) and was given a 16 month community corrections order, commencing 17 June 2020 and concluding 16 October 2021. It was specifically ordered that the Applicant must comply with an apprehended violence order.

18 November 2020

The Applicant was convicted of:

1.    assault occasioning ABH;

2.    assault occasioning actual bodily harm (DV);

3.    common assault (DV) (x2);

4.    intentionally choke a person without consent (DV);

5.    contravene prohibition in AVO (Domestic) (x2);

He was sentenced to a total of 20 months' imprisonment with a non-parole period of 10 months.

SENTENCING REMARKS

1. On the two occasions when the Applicant was sentenced to terms of imprisonment, remarks were made by the sentencing judicial officer. In November 2010 Judge Blackmore, in the District Court made reference to the Applicant’s “very disturbed upbringing”, noted his lack of family support, made reference to some history of drinking and drug taking and described the Applicant as “an immature nineteen year-old man with limited education and employment skills”. His Honour was critical of the fact that “the offender was prepared to commit these offences while subject to that bond [which] is an aggravating factor on sentence”. His Honour also stated that the Applicant “demonstrates little interest in taking steps to improve his future lifestyle or to enhance his employment opportunities”. His Honour regarded the Applicant’s rehabilitation prospects as only being “reasonable”.[6]

   [6] G-documents at 71-73.

2. In November 2020, Magistrate Nash in the Local Court again noted that the Applicant’s offences had taken place while he was “subject to a community corrections order” and that the offences against the young woman in question “occurred in circumstances where [the Applicant was] subject to an AVO for the protection [of that person] and as a consequence [he] breached that AVO.” Nevertheless, the Magistrate decided to raise the non-parole period of the sentence to a 50-50 ratio on the basis that the Applicant did “have reasonable rehabilitation prospects” and “because [the Applicant did] have those positive rehabilitation prospects which can best be achieved in the community.”[7]

   [7] Ibid at 79-82.

   A PREVIOUS CANCELLATION CONSIDERATION

3. On 12 November 2010 the Applicant was convicted of an offence for which he was sentenced to a term of imprisonment of three years. This offence triggered the operation of subsection 501(2) of the Act and the Minister wrote to the Applicant on 31 January 2011 advising that consideration was being given to the cancellation of his visa.[8] The Applicant apparently made representations to the Minister as to why his visa should not be cancelled and on 2 May 2011 the Minister’s delegate advised that, after consideration of these representations, the Applicant’s visa would not be cancelled.

   [8] Ibid at 99.

4. The letter so notifying the Applicant stated clearly:

   “After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds on this occasion. Your current Class TY Subclass 444 Special Category (Temporary) visa will continue to provide you with permission to remain in Australia. However the delegate decided that you are to be given the following formal warning.

   Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.”[9]

   [9] Ibid at 106 – emphasis in original.

5. The Applicant was clearly aware, as from May 2011 that there would be potentially significant consequences in relation to his visa status should he re-offend. He had been given a second chance.

6. The Applicant’s understanding of and response to this letter was the subject of questioning by both the Tribunal and the Respondent’s representative. In answer to both, the Applicant said that while he acknowledged receipt of the letter, he had no clear memory of reading it and certainly professed no understanding of what it might mean. He said that he was unaware of what “immigration” was all about.

   ANOTHER REASON

7. Section 501CA of the Act provides, relevantly:

   (4) The Minister may revoke the original decision if:

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

   (b) the Minister is satisfied:

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

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

8. In making a determination as to whether “another reason” exists, the Tribunal is bound by the provisions of section 499:

   (1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:

   (a) the performance of those functions; or

   (b) the exercise of those powers.

   …

   (2A) A person or body must comply with a direction under subsection (1).

9. Those binding directions are set out in Ministerial Direction 90 (MD90 or the Direction) which commenced to have effect on 15 April 2021.

   MINISTERIAL DIRECTION 90

10. The Direction commences with a Preamble which applies to all parts of the Direction and establishes a number of guiding principles which provide a framework within which decision-makers should approach the task of deciding whether to revoke a mandatory cancellation under section 501CA of the Act.

11. In particular, the Direction provides inter alia that:

    ·being able to come to or to remain in Australia is a privilege conferred 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;

    ·non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia;

    ·there is an expectation that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct that raises serious character concerns, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and

    ·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 for a short period of time.

12. Sub-paragraph 8.1(2) of Part 2 of the Direction starts with a general instruction for a decision-maker to consider the “nature and seriousness of the conduct”.

13. In terms of the “nature and seriousness of the conduct” the decision-maker is obliged to consider the extent to which the conduct involves crimes of a violent or sexual nature, crimes against women and children and acts of family violence. The decision-maker must also (inter alia) consider the frequency of the offending behaviour and whether it displays and trend of increasing seriousness, the cumulative effect of repeated offending and whether an individual has received prior warning about the consequences of further offending.

14. It is worth noting that the issue of “family violence” was introduced into MD90 as a major addition from the set of criteria which existed under its predecessor Ministerial Direction 79 (MD79). This reflects a clear statement of government/public policy that crimes of family/domestic violence and violence against women or vulnerable people are to be regarded as matters of exceptional seriousness.

15. The Direction then elucidates four primary considerations which should generally be given greater weight than the other considerations:

    ·protection of the Australian community from criminal or other serious conduct;

    ·whether the conduct engaged in constituted family violence;

    ·the best interests of minor children in Australia; and

    ·expectations of the Australian community.

16. Section 9 of Part 2 of the Direction provides that other considerations must be taken into account where relevant, which include (but are not limited to):

    ·international non-refoulement obligations;

    ·extent of impediments if removed;

    ·impact on victims; and

    ·links to the Australian community, including:

    ostrength, nature and duration of ties to Australia; and

    oimpact on Australian business interests.

17. The Tribunal is required to consider each of the items. However, it should be noted that there is ample High Court authority for the principle that it is up to the Tribunal itself to assess the weight which should be given to each of the respective criteria. Explicitly, the Court stated in SZJSS that: “[t]he weighing of various pieces of evidence is a matter for the Tribunal.”[10]

    [10] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.

1. Once weight is assessed for each criterion, where there are competing assessments, and a balance to be arrived at, it becomes a matter of the Tribunal engaging in a process of “calculus” [11] to arrive at a final determination.

   [11] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].

   PROTECTION OF THE AUSTRALIAN COMMUNITY

2. The Tribunal must 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.

3. In the first instance the Tribunal notes that several of the offences which were committed by the Applicant can only be regarded as serious. There are a number of instances in which innocent people were assaulted and seriously hurt by the Applicant and there are repeated instances of domestic or family violence. Victims of the Applicant’s violent behaviour encompass complete strangers,[12] a previous employer,[13] other people in their own homes,[14] several ex-partners[15] and fellow custodial inmates.[16] In all instances the acts of violence were primarily initiated by the Applicant and often but not always, affected by alcohol.

   [12] Tender Bundle at 58 and 62.

   [13] Ibid at 54.

   [14] Ibid at 44.

   [15] Ibid at 24-27.

   [16] Ibid at 171-176.

4. The Applicant has a record of non-adherence to Apprehended Violence and community corrections orders and a Sentencing Assessment Report of 18 November 2020 records that the Applicant “demonstrated a poor response to supervision by way of having incurred breach action on two separate occasions”.[17]

   [17] Ibid at 348.

5. Specifically, several of the violent acts were committed while the Applicant was subject to an Apprehended Violence Order and were committed against the person who was the subject of that protective order. When asked directly by the Minister’s representative whether or not his behaviour amounted to a wilful disregard of such orders the Applicant replied, “[y]es, I was going through a lot”.

6. The Applicant clearly has, and admits to, serious issues with anger management and, apart from assaults against persons, has been convicted on more than one occasion of damaging property; on one occasion when turned away from a licensed premises for being intoxicated;[18]and on another occasion as a result of being asked to leave a premises by the resident.[19]

   [18] Ibid at 50.

   [19] Ibid at 44.

7. There is evidence to suggest that the Applicant undertook some sort of “managing emotions” programme (called DEFUSE) through the CatholicCare service in early 2015,[20] but whatever this course involved it does not appear to have modified his subsequent behaviour.

   [20] Tender Bundle at 345.

8. There can be no doubt about the seriousness of the Applicant’s repeated offending, nor the fact that such offending commenced within a relatively short time after his arrival in Australia and has continued over a period of many years. There is no indication that the Applicant’s repeated appearances before the Courts have led to any behaviour modification on his part.

9. In assessing risk, the Tribunal accepts that there is no such thing as an entirely risk-free guarantee of future conduct. The degree of risk is related to both the likelihood of reoffending and the potential gravity of such future offences.[21] Any such assessments must necessarily be speculative and weigh what an Applicant says about his or her own future conduct against what the evidence before the Tribunal suggests.

   [21] Dharma and Minister for Home Affairs [2018] AATA 2757 at [26]; Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 at [89]-[104].

10. The Applicant in previous submissions has contended that:

    "I know inside of me that I can make right choices for myself AND that I can be a good citizen to this country if I was to stay in Australia I am doing something about my convictions by taking programs and learning them. I can make a change in my life to be a good man in this country a working man of the community".[22]

    "I made bad choices that day I am Ashame [sic] empty. It Brakes [sic] me. I made wrong actions. I want to follow the law and I have been willing to be a better person and a man, Better myself and take professional advises and Councilings [sic] to improve. I can prove that I have undertaken therapy to change my Behvaiours that I can be trusted Back into the community that I can do the right things to seek more help here in the community to work and live day to day crime free healthy lifestyle to be law Abiding to Australia."[23]

    [22] G-documents at 113.

    [23] Ibid at 127.

11. The Applicant repeatedly told the Tribunal that his past behaviour resulted from associating with the “wrong crowd” or being influenced by peer pressure. He claimed repeatedly that he had changed as a result of his time incarcerated and that he was unlikely to reoffend.

12. However, when pressed by the Respondent about his numerous acts of violence, while admitting to the actions, he sought to shift responsibility for the situation onto the victims or other people. This appears to be a consistent pattern of behaviour as a Probation and Parole Service report of 13 October 2010 states:

    “Although Mr Amoa pled guilty to his current offences, he has minimized his involvement in the offences and has relegated blame to others in relation to the offences.”[24]

    [24] Tender Bundle at 352.

13. The Applicant admits that he took no notice of a previous formal warning from the Department and that he ignored the directions provided in AVOs or community corrections orders.

14. There is no evidence before the Tribunal that there has ever been a formal “risk assessment” conducted in relation to the Applicant by any of the probation or parole services which have interviewed the Applicant.[25]

    [25] Tender Bundle at 342-355.

15. The Applicant draws attention to the fact that he has completed some courses while in custody[26] but these do not appear to have had any significant impact in modifying the Applicant’s aggressive behaviours.

    [26] G-documents at 138-147.

16. Consideration of the evidence leads inevitably to a conclusion that the risk of reoffending must be regarded as significant.

17. This criterion of MD90 must count heavily against the Applicant.

    FAMILY OR DOMESTIC VIOLENCE

18. It is worth noting that the issue of “family violence” was introduced into MD90 as a major addition from the set of criteria which existed under its predecessor MD79. This reflects a clear statement of government/public policy that crimes of family/domestic violence and violence against women or vulnerable people are to be regarded as matters of exceptional seriousness. MD90 (at sub-paragraphs 8.2(1) and (3)) sets out matters to be considered by the Tribunal as follows:

    (1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen…

    …

    (3) In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:

    (a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;

    (b) the cumulative effects of repeated acts of family violence;

    (c) rehabilitation achieved at the time of decision since the person's last known act of family violence, including:

    (i) the extent to which the person accepts responsibility for their family violence related conduct;

    (ii) the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (especially children);

    (iii) efforts to address factors which contributed to their conduct;…

19. The Applicant has been involved in a number of relationships. He has a daughter, J (her mother being RR)[27] who the Applicant says is now some seven or eight years of age. Nothing further is known of the timing or nature of this relationship.

    [27] G-documents at 120.

20. He was then in a relationship with KS with whom he had two children (M and B), but this relationship ended in 2009.

21. He was then in a relationship with a woman named TL for some 2 to 3 months according to his oral testimony. In February 2020 he assaulted her (aggressively pinioning her arms and holding her against a wall) in the street following what appears to be a verbal argument.[28] This assault was reported to the Police by witnesses, and also captured on closed-circuit television (CCTV) footage, but when interviewed later about the event the Applicant provided a number of different accounts of the incident and the victim was eventually unable to be located by the Police. However, Police did speak to the mother of the victim and they noted a history of domestic violence involving the couple.

    [28] Tender Bundle at 27-28.

22. The Applicant was then in a relationship with KY and assaulted her on two separate occasions. In the first of these (14 June 2020) the couple were in a shopping centre and had an argument about the Applicant’s alleged behaviour which resulted in the Applicant deliberately “ankle picking” the victim causing her to fall over so that he could take off her some Nike shoes which he had recently purchased for her.[29]

    [29] Ibid at 26.

23. Some six weeks later (26 July 2020) the Applicant assaulted KY at their home, choking her and striking her with his fist.[30] This incident was followed several days later by an incident on public transport where the Applicant racially abused and humiliated the victim because of her Aboriginality.

    [30] Ibid at 24.

24. These incidents reveal a pattern of aggressive and violent behaviour against vulnerable women escalating from aggressive holding, to deliberate tripping to choking, punching and public racial abuse.

25. As I made clear in Mendoza:[31]

    The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.

    [31] Mendoza and Minister for Immigration and Border Protection [2018] AATA 666 at [48].

26. The Tribunal does not need to repeat the extensive comments of this Tribunal and the Courts which make it clear that domestic violence is an abhorrent offence for which no excuse can be proffered.

27. Not only has the Applicant committed acts of physical violence against women, but his racially abusive conduct also constitutes an act of domestic violence.

28. Moreover, the latter incidents took place while the Applicant was subject to the operations and strictures of an AVO. In this respect the Tribunal notes the apposite reference in the Respondent’s submission to the comments of the South Australian Court of Criminal Appeal that:

    The purpose of those instruments is to prevent acts of domestic violence which are often emotional and psychological as much as physical. Everyone is entitled to feel safe and secure, especially in their own residence. The violation of that sense of safety and security can have profound consequences for the victim. The community expects the law to protect the vulnerable from the oppressor. This has led the courts to treat crimes involving domestic violence as grave crimes. Parliament has enacted laws designed to provide protection to those subjected to domestic violence. The making of intervention orders is intended to provide this protection.[32]

    [32] R v Saunders [2017] SASCFC 86 at [27].

29. This criterion of MD90 counts significantly against the Applicant.

    BEST INTERESTS OF MINOR CHILDREN

30. The Applicant has stated both in written submissions and in oral evidence that he wants to have the opportunity to develop a close and meaningful relationship with his children and that they are important to him.

31. There is little or no evidence to support this proposition.

32. He has a daughter J who he says is seven or eight years old. He does not know her date of birth nor does he know where she lives. There is no evidence that he has seen her at all in many years.

33. The Applicant has two children with KS. M was born in 2008 (the Applicant was 16 years of age at the time) and B was born in 2010 at a time after the Applicant says his relationship with KS ended[33] and while he was in custody before being sentenced in November 2010. It was the Applicant’s testimony that KS and at least one of the children visited him once when he was in prison but that otherwise he has had no contact with them. In his Personal Information Statement, he attests that he has no idea where J (RR’s daughter) and B (KS’s daughter) live, and he has no intention of residing with any of his children upon any release into the community.[34]

    [33] The Applicant asserted that their relationship ended in 2009.

    [34] G-documents at 120.

34. His evidence to the Tribunal was that the children are also looked after by his mother who has “built a wall” between them and largely prevented him from having any contact with them. This is consistent with the comment by Blackmore J to the effect that “the offender’s mother told the reporting officer that contact had been limited due to the offender’s propensity to commit crime and drink and also take drugs”.[35]

    [35] Ibid at 72-73.

35. It is also consistent with recorded comments in a Probation and Parole Service Report, dated 13 October 2010 that:

    “Mr Amoa stated he has been in a relationship for about three years and has fathered two children the eldest aged 2 years and a baby 2 months old. The offender claimed he intends to resume the relationship with the mother of his two children and declared that he 'wants to provide a better life for his children than ever he had experienced'. Contrary to this information the offender mentioned that he was currently in another relationship.

    Contact with the offender's mother indicated that she has weekly contact with her son's two children and she is of the understanding that his relationship with his children's mother's is completely severed. The offender's mother further stated that her son was in custody prior to the birth of his second child and contact with his first child has been irregular due to his drug and alcohol use and his criminal behaviour.”[36]

    [36] Tender Bundle at 351.

36. Child Support records indicate that the Applicant is required to provide child support for J and M, although there are no such records in relation to B.[37]

    [37] Ibid at 148-149. All current payments are in arrears.

37. In Sebastian the Full Federal Court said:

    The starting point adopted by the Tribunal is one which reflects an assumption generally held by members of the Australian community, namely that in most cases a child’s interests are best served by remaining with their parents. That view is a reflection of the various matters to which Allsop J referred to in Perez, relating to the various aspects of a child’s development. It seems to us that there would be no rational basis for denying the Tribunal the adoption of that assumption, at least initially. As the community would recognise, there may be factors which are to be weighed against that assumption. This is such a case. That does not however mean that the interests of the child has not been regarded as a primary consideration.[38]

    [38] Sebastian v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 31 at [14].

38. This is also such a case. There appears to be no basis upon which it could be assumed that the best interests of any of the children are advanced by the revocation of the visa cancellation, nor that they would suffer any detriment if the Applicant departed Australia. The Applicant has made no discernible contribution to the lives of the children; he has no contact with them or their mothers; his own mother seeks to keep him at arms-length; he does not know where they live; he has no intention of residing with them and he had defaulted on his child support payments.

39. In Meyrick Jackson J referred to instances where:

    Sometimes the nature [of the relationship] will be such that the best interests of the child favour non-revocation, for example if the relationship is abusive.[39]

    [39] Meyrick v Minister for Home Affairs [2020] FCA 677 at [49].

40. The Tribunal does not go that far and hold that it is positively in the interests of the minor children that the visa revocation stand. Rather, it takes the position that their interests do not in any way compel the Tribunal to accord any weight to this consideration in favour of the Applicant.

41. In Paerau, Buchannan J stated:

    In my respectful view, there could be no objection in any case to the AAT concluding that the best interests of a child did not weigh either for or against the cancellation of a visa, so long as the available material was assessed conscientiously. That is not the same as not stating a conclusion about the issue at all.[40]

    [40] Paerau v Minister for Immigration and Border Protection [2014] FCAFC 28 at [27].

42. For the sake of completeness, the Tribunal notes that the Applicant has made reference as follows:

    All my cousins here in Australia hav been adopted away when they were younger then [sic] the age of 8 years of age due to my uncles family domestics though I wish to know where they are upon release.[41]

    [41] G-documents at 123.

43. There is no further information before the Tribunal in relation to any of these “cousins”, either in relation to their age (minors or otherwise) or to any degree of contact between them and the Applicant.

44. In short, the mere presence of minor children is insufficient to have this criterion weighed in an applicant’s favour. There must be some substance or quality in the relationship which justifies a conclusion that it is positively in the best interests of the relevant children that a visa cancellation decision be revoked.

45. In relation to the best interests of the minor children, the criteria in MD90 counts neither for nor against the Applicant and the Tribunal accords it no weight in its calculus.

    THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

46. Sub-paragraph 8.4(1) of the Direction provides that:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.

47. Sub-paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be granted or continue to hold a visa.

48. That norm referred to in the Direction is to be understood as providing that:

    ·the Australian community expects non-citizens to obey Australian laws while in Australia;

    ·where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk they may do so, the Australian community expects the Australian Government to not allow such a non-citizen to enter or remain in Australia; and

    ·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 not continue to hold a visa.

49. The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).

50. This consideration is about the expectations of the Australian community taken as a whole, and in this respect, decision-makers are required to proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).

1. This consideration has been the subject of extensive judicial discussion which is ultimately determinative.[42] That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in MD90 at paragraph 8.4. Although these principles are discussed in relation to the former MD79, those principles are relevantly analogous in principle with respect to MD90.

   [42] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J.

2. It has further been held that the consideration is “[i]n substance … adverse to any applicant” in virtually all circumstances and was indeed, designed to be so.[43]

   [43] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J.

3. There is nothing before the Tribunal which would allow it to do anything other than to accept that this criterion weighs against the revocation of the cancellation decision. However, as noted, the weight to be given to this (or any other consideration) is a matter for the Tribunal itself to determine.

4. In this instance the Tribunal accepts the submission of the Respondent that the totality of material before the Tribunal should cause it to give significant weight to the criterion and it does so.

   “OTHER” CONSIDERATIONS

5. Having considered what the Direction designates as “primary” considerations, the Tribunal must turn to those designated as “other”. As Colvin J has made clear in Suleiman:

   [t]o treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.[44]

   [44] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28]. Ministerial Direction 65 was a precursor of MD90 and was operative from 23 December 2014 to 28 February 2019.

6. His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant.[45]

   [45] Ibid at [26].

7. Colvin J’s statement was considered and not disapproved by the Full Federal Court in HSKJ[46] and more clearly supported by Wigney J in FHHM. [47]

   [46] Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [31]-[35].

   [47] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775 at [21].

8. This principle has been affirmed in a number of Tribunal cases,[48] for example being made explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:

   …factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.[49]

   [48] Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947 at [131]-[137].

   [49] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88].

9. In Tewhare the Tribunal made it clear that:

   While affording to primary considerations more weight than the other considerations is generally the case, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[50]

   [50] Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875 at [50].

10. In CZCV the Tribunal stated:

    When read in light of the Full Court’s comments in HSKJ, in the Tribunal’s opinion, it would be correct to state that although the Tribunal cannot elevate an other consideration to become a primary consideration, it can give greater weight to an other consideration over a primary consideration.[51]

    [51] CZCV and Minister for Home Affairs (Migration) [2019] AATA 91 at [164]. Ministerial Direction 65 (effective 23 December 2014 to 28 February 2019) is an analogous predecessor of Ministerial Direction 90 and the relevant parts are expressed in the same terms.

    International non-refoulement obligations

11. There are none arising in this application.

    Extent of impediments if removed

12. The Tribunal accepts that the Applicant has lived in Australia since 2008 and that there is substance in his claim that he has no significant ties to New Zealand.[52] He does not appear to have any family network there although he indicated in oral evidence that his grandmother is alive in New Zealand while his grandfather resides in the Cook Islands.

    [52] G-documents at 127.

13. On the other hand, the Tribunal accepts that the Applicant is familiar with the culture and mores of New Zealand, the land of his birth, although it accepts that he has not resided there since 2008. He would suffer no difficulty in a cultural or linguistic sense if sent back there. He is relatively young and generally physically healthy. His employment prospects would be no worse in New Zealand than they are in Australia.

14. The Respondent acknowledges that the Applicant would suffer emotional hardship in being returned to New Zealand and that, consistent with the exhortation in Hands[53] for decision-makers to take such impacts into account, this criterion should be accorded some weight, albeit limited.[54]

    [53] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].

    [54] Respondent’s SFIC at [75]-[76].

15. The Tribunal accepts this submission and accords some limited weight on favour of the Applicant in relation to this criterion.

    Impact of revocation upon victims

16. Sub-paragraph 9.3(1) of Direction 90 provides:

    Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

17. The Respondent rightly points out that there is no evidence before the Tribunal in relation to any of the victims of the Applicant’s offending behaviour.[55] Although the comments in various Police reports about the impact upon a variety of victims at the time offences were committed against them is a matter of record in its own right, there is nothing akin to the evidence discussed by Kerr J in PGDX[56] which needs to be considered by this Tribunal.

    [55] Respondent’s SFIC at [78].

    [56] PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235.

18. As a result, this criterion of MD90 counts neither for nor against the Applicant.

    Strength, nature and duration of ties to Australia

19. Paragraph 9.4.1 of Direction 90 requires decision-makers to have regard to the strength, nature and duration of a person's ties to Australia. This consideration has two elements:

    (a)first, the Tribunal should have regard to the impact that a person's removal might have upon the person's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely (paragraph 9.4.1(1)); and

    (b)secondly, the Tribunal should have regard to the person's broader ties to the Australian community, including by reference to how long that person has resided in Australia (although less weight should be attributed to this factor where a person commenced offending shortly after their arrival), how long the person has been contributing positively to the Australian community, and the strength, duration and nature of social ties with Australian citizens, permanent residents or people who have an indefinite right to remain in Australia (paragraph 9.4.1(2)).

20. It is undoubtedly true that the Applicant has lived for many years in Australia and considers this country his home. Any such ties he might have are all in Australia. The evidence is unclear as to exactly what family members he has in Australia apart from his mother, at least one uncle and some cousins. In any case, none of them came forward (or were asked to come forward) to provide written or oral support for the Applicant. None of his ex-partners, including the mothers of his children came forward in his support, nor did any of his friends or workmates. In a report by the Probation and Parole Service dated 14 December 2012 it is even recorded that “[t]he offender stated that he does not afford the support of his family, claiming to have been ‘disowned’ by his mother” for reasons unknown.[57]

    [57] Tender Bundle at 384.

21. Sadly, the Applicant appears to be very much alone and unsupported.

22. There is no evidence of any pattern of continued employment, community engagement or service in the Applicant’s life in Australia. It is indeed a bleak and sorry picture in that regard.

23. However, mere sympathy for the Applicant’s position cannot detract from the assessment that while this criterion should be counted in the Applicant’s favour it cannot be accorded any significant weight.

    THE CALCULUS

24. In relation to the specific criteria of MD90 the Tribunal has found that the protection of the Australian community, consideration of matters of domestic violence and the expectations of the Australian community as primary considerations all weigh substantially against the Applicant. In terms of the primary consideration of the best interests of minor children this weighs neither for nor against the Applicant, but if it is required that some weight be given to it (a position not accepted by the Tribunal) then it would be only minimally in favour of the Applicant.

25. Among the other considerations, the extent of impediments if removed and the strength, nature and duration of the Applicant’s ties to Australia weigh marginally in his favour while the criteria of non-refoulement and the impact on victims weigh neither for nor against.

26. The balance of the various criteria weigh heavily against the Applicant and against any revocation of his visa cancellation.

    CONSIDERATION

27. There is no doubt that the Applicant suffered a difficult childhood and was afforded few opportunities to develop a full and meaningful life. He came to Australia as a young man with a chance to break away from some of the traumas of his past and start on a new path. However, within a short period of time he committed his first act of violence but was given the opportunity to address his offending behaviour when sentenced to a 12-month control order, suspended for twelve months and placed under supervision by parole services. He did not take this opportunity and, within a short period of time commenced on a long-term pattern of criminal activity and offending, often involving acts of violence.

28. His offending behaviour led to him being advised that consideration was being given to the cancellation of his visa but was offered a second chance. His visa was not cancelled but he was given a formal warning about the consequences of further offending. He chose to ignore this and to resume his offending behaviour within 18 months of that warning. In this respect he forfeited his second chance.

29. Along the way a variety of innocent third parties have been the subject of assault, robbery or property damage occasioned by the unprovoked actions of the Applicant. In some instances, the misuse of alcohol has been a contributing factor and in other cases not.

30. The Applicant has been in several relationships with a number of women, none of which have been successful and some of which have been, to use his term, “toxic”. In several of those relationships he has engaged in unacceptable acts of domestic violence and racial abuse. He has fathered three children for whom he has provided little to no care or support.

31. The Applicant has been utterly cavalier in his approach to community corrections orders or AVOs which have been issued and has chosen to disregard or ignore them.

32. In Guo the High Court stated:

    The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence.[58]

    [58] MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS V GUO WEI RONG (1997) 144 ALR 567 AT 579.

33. The Applicant submits to the Tribunal that he wants to change, that he accepts that his behaviour has been unacceptable and that he intends to make a better person of himself. Nevertheless, in his oral testimony at the hearing it was evident that he persisted in attempting to shift blame onto others for initiating events when all the evidence was to the contrary and failed to resile from his expressions of racial prejudice towards members of the Aboriginal community. This matter is not, of itself, a relevant factor to be weighed against the criteria of the Ministerial Direction but rather indicative of a lack of insight which gives support to the Tribunal’s conclusions that the Applicant has little chance of making the changes in his life and behaviour which would be necessary to persuade it to revoke the visa cancellation.

34. Cancellation of a visa does not amount to some form of punishment (additional or otherwise for offences committed) as the High Court made clear in Falzon but rather is an exercise of a power to commence a process to remove from Australia:

    persons who, in the judgment of the Parliament, have shown by their offending that their continued presence here would be opposed to the safety and welfare of the nation.[59]

    [59] Falzon v Minister for Immigration and Border Protection [2018] HCA 2 at [94] per Nettle J.

35. The Applicant has shown by his repeated acts of violent behaviour and his disregard not only of the safety and welfare of other people but of both the second chance afforded to him and the obligation to obey orders of the Courts that he poses an ongoing and unacceptable risk to the Australian community. The Australian community has a right to expect protection from such risks.

    DECISION

36. The decision under review is affirmed.

I certify that the preceding 119 (one hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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

Associate

Dated: 17 January 2022

Date(s) of hearing:	5 January 2022
Applicant:	In person
Solicitors for the Respondent:	Mr O Morris, Clayton Utz