Corbett and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 5087

Corbett and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 5087 (21 December 2021)
Division:GENERAL DIVISION
File Number: 2021/7155
Re:Te Naera Kiwi Rawiri Corbett
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:21 December 2021
Date of written reasons: 21 January 2022
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision made by the delegate, dated 27 September 2021, to refuse to revoke the Mandatory Visa Cancellation Decision, and in substitution, decides that the cancellation of the Applicant’s Special Category (Subclass 444) visa is revoked.
...................................[sgd].....................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of visa – Migration Act 1958, subsection 501CA(4) - Direction No. 90 – property damage – breach of Apprehended Violence Order – applicant resided in Australia from infancy – deprived upbringing – ward of state – intractable maternal relationship – family violence – links to Australian community – decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Migration Act 1958 (Cth)
CASES
Briginshaw v Briginshaw (1938) 60 CLR 336.
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
21 January 2022
INTRODUCTION

Mr Te Naera Kiwi Rawiri Corbett (‘the applicant’) is a 24 year old citizen of New Zealand. On 28 July 2000, he was granted a Special Category (Subclass 444) visa upon arrival in Australia.
On 18 February 2021, his visa was cancelled. The reason for cancellation was that he was then serving a term of imprisonment on a full-time basis in a custodial institution, having been sentenced by a court to a term of imprisonment of 12 months or more.[1] He therefore failed the character test.[2]
[1] Migration Act 1958 (Cth) (the Act) sub-s 501(3A)(a)(i).
[2] The character test is defined in subsection 501(6) of the Act.
On 8 March 2021, he requested that the decision to cancel his visa be revoked.[3] On 27 September 2021, a delegate of the Minister decided not to revoke the cancellation decision.[4] On 3 October 2021, he applied to the Administrative Appeals Tribunal (‘the Tribunal’) to review the delegate’s decision not to revoke the cancellation decision.[5]
[3] G7, 181; G2, 64-85.
[4] G2, 9.
[5] G1, 1-6.
THE HEARING
The hearing was conducted by the Tribunal by videoconference over two days (1 and 2 December 2021). The applicant was legally represented by Ms Marta Mamarot of South West Migration & Legal Services. The respondent was represented by Mr Edwin Taylor of Mills Oakley.
The applicant gave evidence, and called a number of witnesses:
(a)Dr Emily Kwok – clinical psychologist;
(b)Ms Marina Naera (Witness) – his mother;
(c)Ms Taylah Williamson (Witness) – his sister-in-law;
(d)Mr Matenga Corbett (Witness) – his brother;
(e)Ms Diane Ryan – a family friend;
(f)Ms Kareemah Naser – his partner.
MATERIALS BEFORE THE TRIBUNAL
The parties filed the following materials with the Tribunal:
(a)The applicant’s Statement of Facts, Issues and Contentions, dated 3 November 2021;
(b)The applicant’s tender bundle (ATB), consisting of 134 pages;
(c)The respondent’s Statement of Facts, Issues and Contentions (SFIC), dated 18 November 2021;
(d)Materials provided by the respondent under section 501G of the Migration Act (the ‘G documents’), consisting of 197 pages;
(e)The respondent’s Tender Bundle (RTB), consisting of 223 pages;
(f)Document, Ministry of Social Development, Work and Income;
(g)Document, Department of Corrections, Returning Offenders Fact Sheet (2019).
THE ISSUE
It was accepted by the parties that the applicant fails the character test. Ms Mamarot acknowledged that he had been sentenced to a term of imprisonment of 12 months or more, and that he was at the time of the decision to cancel his visa serving a custodial sentence.[6] He therefore had a substantial criminal record.
[6] The Act sub-ss 501(6), (7)(c).
Under section 501CA(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.
The issue for the Tribunal is therefore whether, despite failing the character test, there is ‘another reason’ why the decision to cancel his visa should be revoked.
DECISION
The Tribunal is satisfied that the question should be answered in the affirmative. Despite failing the character test, there is ‘another reason’ why the decision to cancel the applicant’s visa should be revoked. The decision of the delegate is set aside. As a result, his visa is not cancelled. The reasons of the Tribunal are set out below.
BACKGROUND
The applicant has lived for all but his first two years in Australia. He arrived in Australia as an infant. His family took up residency on 28 July 2000, having previously visited Australia briefly in 1998.[7] He has lived in Australia ever since, apart from three short absences of less than 12 weeks.
[7] This short visit to Australia was from 6 April to 16 May 1998.
The Special Category Visa (SCV) held by the applicant is granted as a matter of course to citizens of New Zealand upon arrival in Australia. After 26 February 2001, the SCV entitles the holder to remain indefinitely in Australia, although not as a permanent resident.[8]
[8] Because he was residing in Australia as the holder of a SCV on 26 February 2001 (see travel information: Appendix A), he would have been eligible for Australian citizenship as an eligible New Zealand citizen had he spent at least 12 months in Australia between 26 February 1999 and 25 February 2001.
Ms Marina Naera (the applicant’s mother) and his father separated when he was about five years of age.[9] Ms Mamarot, for the applicant, informed the Tribunal that he became a ward of the state around that age when he entered a long term foster care program.[10] The circumstances of this intervention are not known to the Tribunal.
[9] RTB, R11/159.
[10] Transcript of Proceedings (2 December 2021) 75.
Ms Naera gave evidence and stated that she had no idea why her children were removed.[11] When pressed, she said that she used to drink in those days.[12] The applicant has stated that his parents were ‘drunks’ and were physically abusive.[13]
[11] Transcript of Proceedings (1 December 2021) 36.
[12] Transcript of Proceedings (1 December 2021) 39.
[13] Statutory Declaration dated 25 November 2021, para [4]: ATB, 1.
He attended primary school in Sydney before moving to Queensland with his foster parents, where he attended high school. The Tribunal does not have access to his school records. He received some counselling when he was first taken into foster care and later at school. He told Dr Kwok, the clinical psychologist who appeared in these proceedings, that he had been bullied at school and on several occasions resorted to self-harm.[14]
[14] ATB, 37.
He attended school sporadically in year 12 and, according to his statement, when he turned 18 his foster parents were no longer receiving money from the government, so he began to steal. There are some entries for public order offences in his Queensland criminal record.
In around 2016, his brother told him that he was staying with Ms Naera in Sydney and the applicant flew down to see her for one week. In late 2017 he stayed with her for two weeks. In 2018, he and his partner moved in, staying for a number of months before moving out to live in a place on their own and to be closer to work.[15] When that relationship ended in August 2019, the applicant returned to Ms Naera’s abode.[16]
[15] Transcript of Proceedings (1 December 2021) 12.
[16] ATB, 2.
On 21 September 2019 an incident occurred that came close to ending the relationship. The applicant’s account is that he came by his mother’s house early on Saturday morning because his boss had asked him to come in to work. Ms Naera was at home drinking with his two cousins. It was the ‘first time seeing her like that’.[17] An argument ensued. It was ugly. He said that she shoved him and said very unkind things to him. He lost his temper and threw a chair through a window.
[17] Transcript of Proceedings (1 December 2021) 13.
The applicant was arrested and removed from Ms Naera’s house. Later, he was taken back to retrieve his things and then dropped off at his brother’s house in Liverpool.
The police made an interim Apprehended Violence Order (AVO), specifying Ms Naera as the person in need of protection (PINOP).[18] The AVO was ratified by the magistrate’s court on 13 November 2019 when he was fined $600 for property damage.[19]
[18] RTB, R9/62-64.
[19] G documents, G2/30.
In his oral evidence before the Tribunal, he was asked whether he was told about the terms of the AVO. He said that the police told him about the AVO but he could not remember being told about its duration.[20] He says that he was given a physical copy of the AVO, but that he did not read it properly. He said: ‘the only thing I had read that I cannot reside with my mother Naera and that I can't stalk or intimidate her. That's all I had read’.[21]
[20] Transcript of Proceedings (1 December 2021) 15.
[21] Transcript of Proceedings (1 December 2021) 16.
A year later (on 13 September 2020) he was charged with contravening the AVO. He was also charged with damaging Ms Naera’s house. The incident is described in greater detail below. He was arrested and taken into custody. On 12 January 2021, he was sentenced on a plea of guilty to 15 months imprisonment with a non-parole period of eight months for contravening the AVO, and to 6 months imprisonment for property damage.[22]
[22] G documents, G2/29-30.
Given certain threats made during the police interview, when the matter came to court the police applied to vary the AVO, so as to include his brother Matenga Corbett, his sister-in-law Ms Williamson, and his two year old niece, to the list of persons in need of protection. The AVO was extended for a period of five years from 12 January 2021.[23]
[23] RTB, R11/158.
These are the only custodial sentences in the applicant’s criminal record.
THE OFFENCES
His offending record as a youth in Queensland is as follows.
(a)On 1 February 2016, he was sentenced to 40 hours of unpaid community service, with no conviction recorded, for the offences of commit public nuisance, breach of bail condition, and assault or obstruct police officer in public place while adversely affected by intoxicating substance;
(b)On 4 March 2016, he was sentenced to two years’ probation and 160 hours of unpaid community service, with no conviction recorded, for six counts of enter premises and commit indictable offence and one count of breach of bail condition; and
(c)On 27 July 2017, he was convicted of the offence breach of community service order imposed on 04/03/2016 and fined $800.
There is not much information relating to the circumstances of these various offences. He had only a vague recollection of the offending behaviour.
I turn to the offending in New South Wales.
The first incident – 21 September 2019
This incident occurred at Ms Naera’s house, shortly after he moved back in after breaking up with his partner.[24] He threw a chair through the kitchen window, thus earning a $600 fine for property damage.[25] Subsection 195(1)(a) of Crimes Act 1900 (NSW) is punishable by a maximum of five years imprisonment.
[24] RTB, R12/182.
[25] G documents, G2/30.
The following facts appear from the Police Facts Sheet:[26]
(a)the incident occurred early in the morning;
(b)the applicant had not been drinking. (Ms Naera had been drinking all night, since 1 am. The applicant had not been drinking);
(c)the applicant sustained an injury when he jumped over the fence to retrieve Ms Naera’s phone. (The accused jumped the side fence besides walking through the house or around from the driveway. When he landed over the other side of the fence, he jarred his knee causing himself instant pain. The lawnmower man has seen this…);
(d)Ms Naera verbally abused him. (The victim was telling the accused that she should have gotten rid of him when he was three (3) and due to issues during his life, this triggered him again);
(e)Ms Naera assaulted the applicant by shoving him in the face. (The victim has stood up with a bottle of beer in her left hand. With her right hand, the victim has placed her open hand on the face of the accused and pushed his face away);
(f)Ms Naera did not sustain any injury and there was no mark to indicate that she had. (The victim was then spoken to where she alleged that the accused had struck her in the head and broke the window. At the time of the alleged assault, there were no witnesses in the backyard and police could not see any injuries to the area that the victim stated she had been struck);
(g)the applicant denied assaulting Ms Naera (He said that he only ever stood directly in front of her on the stairs, not to the side of her and at no time, placing his arm through the bars to the stairs hand rail).
[26] R9/41. The source statements from the Facts Sheet are placed in parentheses.
The Facts Sheets paint a grim picture. Taken at face value, his mother was heavily intoxicated, verbally abusive and violent. In oral evidence to the Tribunal she denied being abusive and said she told him to get out. She said she had been drinking but it was only ‘one bottle’.[27]
[27] Transcript of Proceedings (1 December 2021) 39.
The applicant told the Tribunal that he had not seen his mother drinking before this incident. He said that she was ‘talking to herself saying a lot of things that didn't have to be said. And she had made a comment about saying that she should have killed me when she had the chance when I was a little kid. And I just I couldn't help myself’.[28]
[28] Transcript of Proceedings (1 December 2021) 13-14.
His reaction was to throw a chair through the window.
During the Tribunal hearing Ms Naera denied that she had said anything untoward to her son.[29]
[29] Transcript of Proceedings (1 December 2021) 39.
As noted above, the interim AVO made by the police on 21 September 2019 was confirmed by the magistrate’s court on 13 November 2019. Ms Naera is identified as the person in need of protection (PINOP).[30]
[30] RTB, R9/62-64.
The Final Order stated:
Tenarea CORBETT, you must follow the orders below. It is a criminal offence not to follow these orders. You could be arrested by police and charged. If you are convicted, you could go to prison for up to 2 years and be fined up to $5,500.
You could also be charged with other criminal offences. If you are convicted of these offences, you could receive a much higher penalty.
You must follow these orders everywhere in Australia.
You must follow these Order(s) until 12 November 2021,
The Order(s) have been made to protect Marina NAERA.
You must follow these orders even if Marina NAERA doesn’t want you to or tells you that you don't need to. If you attempt to do any of the things below, it will still be a criminal offence called a breach.
Orders about behaviour
You must not do any of the following to Marina NAERA or anyone she has a domestic relationship with:
A) assault or threaten her
B) stalk, harass or intimidate her, and
C) intentionally or recklessly destroy or damage any property that belongs to or is in the possession of Marina NAERA …
Orders about where the defendant cannot go
9. You must not go within 100 Metres of:
A) any place where Marina NAERA lives, or
B) any place where she works, or
C) any place listed here
[Address noted] ….
If you breach this order
• You could go to prison for up to 2 years and be fined up to $5,500
• You could be charged with other criminal offences (for example, assault or intimidation), as well as the breach of this order. If convicted of these offences, you could receive a higher penalty such as more time in prison.
The Final Order was dated 13 November 2019 and was in force for two years from that date,[31] identifying Ms Naera as the person in need of protection.
[31] RTB, R9/64.
The applicant remained at his brother’s house in Liverpool for a few months. He soon moved back to Ms Naera’s place of residence (in early January). This was a clear breach of the AVO, which prohibited him from going within 100 metres of her place of residence.
Ms Naera told the Tribunal that she was not told about the AVO by the police. She said that she became aware of the AVO a few weeks before the Tribunal hearing. Because she did not know about the AVO, she made no application for it to be amended.[32]
[32] Transcript of Proceedings (1 December 2021) 38.
The applicant told the Tribunal that he thought that the AVO was no longer in force, although under examination he could not give a reasonable explanation for this belief.[33]
[33] Transcript of Proceedings (1 December 2021) 15-16.
The second incident – 13 September 2020
Despite the traumatic nature of the first incident, the applicant returned to live with his mother in the New Year and did so until 13 September 2020. He needed a break from living with his brother. At the hearing he was asked about his mother’s drinking and said:
And did she drink regularly after that point that you moved in in January 2020?‑‑‑Yes, I seen her drink a couple of times but that was it.
So not regularly?‑‑‑Not regularly, no. No, sir.
So did you have any issues with your mother between that time and September 2020 when the most serious incidents took place?‑‑‑No, sir. We were actually going great, I felt like we were doing really good together.[34]
[34] Transcript of Proceedings (1 December 2021) 18.
The applicant gave the following evidence to the Tribunal. He said that on the evening of 12 September 2020, he had a fight with his brother. He said it was not uncommon for him and his brother to have scuffles but this was more serious. He and some cousins had been drinking and he had been taking drugs, ice and then cocaine and then MDMA. He said it was the first time he had taken ice, and did it because he was working two jobs. His brother and sister in law were unaware that he had taken drugs because he took them behind the shed.
In the morning he returned to his mother’s house where he discovered that he had left his phone, he thought, at his brother’s house. His mother drove him back to look for it but it was not found.
When they arrived home an argument ensued. Ms Naera told the police that he was rambling incoherently, and she could not understand him. He appeared to be in a state of extreme intoxication. The cocktail of drugs consumed the night before may well have produced some degree of psychosis.
His evidence to the Tribunal was as follows:
I remember going to my mother's place when I first got there and I was hitting the door, I remember hitting the door or something. I wasn't angry at my mother, I was just at myself. I don't understand really why I was doing that. And I just remember my mother was yelling at me and then I remember just getting really upset, really angry.
He appeared with a jerry can of petrol and set the kitchen on fire, causing considerable damage to the kitchen, front living room area, and bedroom.[35] When the police arrived, he identified himself as the culprit and turned himself in.
[35] G documents, G2/31.

He was arrested and taken by the police to St George’s Hospital, where, according to the police statement, he was declared not to be mentally ill. At a police interview held a few hours later, he said that he wanted to kill members of his family including his mother, his brother and sister in law, and his niece.
A few days after the incident, a medical officer saw him in custody and commenced antipsychotic medication.[36]
[36] R11/159.
On 12 January 2021, the applicant was sentenced as follows:
(a) Contravene prohibition/restriction in Apprehended Violence Order (AVO) (Domestic), sentenced to 15 months imprisonment with a non-parole period of eight months, commencing on 13 September 2020 and expiring on 12 December 2021, with a parole release date of 12 May 2021;
(b) Damage property by fire>$15000 (DV), sentenced to a term of imprisonment of 6 months to commence on 13 September 2020 and expiring on 12 March 2021;
(c) Common assault (DV), no penalty imposed, pursuant to section 10A.[37]
[37] Crimes (Sentencing Procedure) Act 1999 (NSW) s 10A.
The applicant was sentenced on the basis that he had no prior criminal record. It appears that the Queensland offences were not before the Court. However, in respect of his 2019 offending (the ‘first incident’ described above) the magistrate sentenced him to six months imprisonment to be served concurrently with the 15 month sentence.[38]
[38] G documents, G2/41.
It is important to record that the applicant was not convicted or sentenced for arson which is a much more serious offence and involves an element of specific intent, namely intent to endanger the life of another person.[39] The offence with which he was charged (damage property by means of fire or explosives under subsection 195(1)(b)) is nevertheless very serious, as shown by the maximum penalty of imprisonment for ten years.
[39] Crimes Act 1900 (NSW) s 117.
THE DISCRETION UNDER SUBSECTION 501CA(4)
In exercising the discretion under subsection 501CA(4) of the Migration Act, the Tribunal is bound by subsection 499(2A) to comply with Direction No. 90 (‘the Direction’), the purpose of which is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. The Direction is highly prescriptive, but the weight to be assigned to the various considerations identified therein is entirely a matter for the Tribunal.
Part 1 of the Direction sets out certain formal matters and also, importantly, the principles that provide the framework within which decision-makers should approach their task. Paragraph 5.2 sets out five 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)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.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens 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 by non-citizens who have lived in the Australian community for most of their life, or from a very young age (emphasis added).
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case.
In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community (emphasis added).
Part 2 of the Direction provides guidance in relation to exercising the discretion. Under paragraph 8, four primary considerations (para 8) are identified. They are as follows:
·     PC1: protection of the Australian community from criminal or other serious conduct;
·     PC2: the presence of family violence;
·     PC3: the best interests of minor children in Australia;
·     PC4: expectations of the Australian community.
Under paragraph 9, other considerations must also be taken into account, where relevant. In the present case, these considerations include: the extent of impediments if removed; the impact on victims; and links to the Australian community, including the strength, nature and duration of ties to Australia, and the impact on Australian business interests.
The Direction contains principles and rules relating to the weighing of the various considerations. For example, primary considerations should generally be given greater weight than the other considerations; and one or more primary considerations may outweigh other primary considerations. Although the Direction does not say so explicitly, it has been held that in particular circumstances a non-primary consideration may be dominant in the case.[40]
[40] FYBR v Minister for Home Affairs [2019] FCAFC 185.
The Direction also refers to a myriad of subsidiary issues relevant to each of the specified considerations. I have regard to each of these factors referred to in the Direction.
Paragraph 8.2 refers explicitly to family violence. I note that paragraph 8.2.1 states that the Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen. However, I also bear in mind the principle stated in paragraph 5.2(4) that Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
PRIMARY CONSIDERATIONS
Protection of the Australian community: PC1
Paragraph 8.1(1) provides that decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers upon non-citizens in the expectation that they are, and have been, law-abiding, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) provides that decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Sub-paragraph 8.1.1 The nature and seriousness of the conduct
Sub-paragraph 8.1.1 of the Direction outlines various factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date. In this section I refer to those aspects which I find to be relevant to the present circumstances.
I note specifically sub-paragraph 8.1.1(1)(a) which refers to certain types of crimes or conduct that are viewed very seriously by the Australian Government Australian and community. Decision-makers must have regard to the following:
a)without limiting the range of offences that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community (sub-paragraph 8.1.1(1)(a)(i)- (iii)):
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
Given that the offences in respect of which he was sentenced to 15 months imprisonment were committed in the home of Ms Naera, his biological mother, with whom he was then residing, I am satisfied that each of these subparagraphs is engaged, and that the applicant’s conduct is to be viewed very seriously by the Australian Government and by the community at large.
As to sub-paragraph 8.1.1(1)(b), I note the principle that crimes committed against vulnerable members of the community (such as the elderly) are serious, and that Ms Naera falls into this category.
As to sub-paragraph 8.1.1(1)(c), I have noted the sentences imposed, in paragraph 26 above.
The incidents in 2019 and 2020 both involved explosive loss of temper, but I do not think that a pair of incidents standing alone is sufficient to constitute a trend. It is perhaps more accurate to describe them as objectively sharing certain common characteristics, that is, property damage within a domestic context. However, whether or not two instances constitute a trend, there is no doubt that the subsequent property offence is more serious, as was reflected in the more serious charge, as noted above. Moreover, both offences were committed in a domestic context, and must therefore be viewed very seriously.
I note that the most recent offence appears to have been committed in the course of a drug induced psychotic state.
The most severe penalty was imposed for the AVO contravention offence, which stands as a solitary example of this type of offending.
The later property offence was accompanied by an assault on his mother, although she did not sustain any injury. The delegate noted:
While the violence-related offence of common assault committed by Mr CORBETT did not result in actual bodily harm, I nonetheless find Mr CORBETT’s behaviour most likely interfered with his mother’s comfort and potentially placed her in fear of being injured. In the same respect, I consider the malicious damage Mr CORBETT caused to his mother’s property on two separate occasions constitutes threatening and intimidating conduct towards her.[41]
[41] G documents, G2/21 [68].
The Tribunal is required to consider the cumulative effect of repeated offending 8.1.1(1)(e). The Tribunal is required to view the applicant’s conduct in its entirety, and in so doing, evaluate the nature and seriousness of the offending not as a series of discrete events, but as part of a continuum. The cumulative effect on the applicant is of course that he will be exposed to escalating penalties in the criminal justice system; the effect of repeated offending on the general public in this particular case will be to increase concern about the prevalence of domestic violence and property crime. To the extent that the offender is identified in media reports as a non-citizen, the effect of repeated offending is to reduce confidence in governmental policies and ultimately may reduce community acceptance of non-citizens.
Sub-paragraph 8.1.2 The risk to the Australian community
I turn to consider sub-paragraph 8.1.2 which directs the Tribunal to consider the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
8.1.2. The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable (emphasis added).
(2) In assessing the risk that may be posed by the non-citizen 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:
i)information and evidence on the risk of the noncitizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
The applicant’s offending in September 2020 caused very significant damage to Ms Naera’s home. It is safe to conclude that the harm that would be caused, if this conduct were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. However, the principle as stated in the Direction involves some conditionality (‘if this conduct were to be repeated’) and I also note the use of ‘may’ rather than ‘must’. The wording suggests that even though the nature of the harm is sufficiently serious that due care should be taken to prevent its repetition, that the Tribunal has an overriding discretion in relation to the assessment of risk.
The Tribunal is directed to consider explicitly both the nature of the harm (8.1.2(2)(a)) and the risk of that harm occurring (8.1.2(2)(b)). In assessing the risk relevant information and evidence regarding risk should be considered.
The nature of harm – sub-para 8.1.2(2)(a)
The nature of the harm is essentially the violation of his mother’s right to sanctity in her own home, the contravention of the AVO, and the associated property damage.
I note that each of the adults listed in the AVO gave evidence before the Tribunal supporting his application for revocation of the mandatory cancellation. Moreover, none of those adults, for whose protection the AVO was issued, claimed to know of its existence or terms - until very recently.
There can be little doubt that the applicant was aware, or should have been very aware, of its terms. He was given a copy of the Order. The simple truth is perhaps that he simply did not think that it was really binding or that he could be kept from living with his mother. If he held such a belief he was obviously mistaken and paid dearly in terms of a long custodial sentence.
The assessment of risk – sub-para 8.1.2(2)(b)
The assessment of the risk of future offending is related to the cause of offending, and questions of remorse and rehabilitation. The presence of genuine remorse is likely to significantly increase the prospect of meaningful rehabilitation.
The applicant described his drug use as follows:
My Alcohol and Drug Use
25. I started drinking alcohol with my friends when I was around 13 -16 years old. But started drinking a lot from around 17 years old.
26. I started using drugs ecstasy and cocaine when I was in high school. I used them pretty much every weekend when I went out. I would sneak out.
27. Once I started working, I did long hours so that’s when I started using cocaine, MDMA pills and alcohol.
28. The drug use and the alcohol got out of control when I started committing offences. I never realised had a problem until I ended actual prison. I know that I had to stop taking drugs and alcohol because I couldn’t live like this anymore.[42]
[42] ATB, 4.
A report prepared by a clinical nurse employed by the NSW Justice Health Forensic Mental Health Network concluded that the applicant did not present with symptoms of a 'mental illness' as defined in the Mental Health Act 2007 (NSW), but that ‘he would benefit from an extended period of abstinence and further assessment to allow for diagnostic clarification. [The applicant] would benefit from engagement with drug and alcohol services.’[43]
[43] RTB, R11/159.
The sentencing magistrate noted:
He has pleaded guilty at the first occasion when the prosecution indicated they are not proceeding on indictment. I am satisfied that encapsulates a full remorse and contrition, given what is set out in the presentence report that the accused has no real recollection of the offences.[44]
[44] G documents, G2/38.
The learned magistrate also noted:
He was in foster care from five years of age until 18 years of age. Despite that, and not unusually, he sought to connect with his mother, and came and started some contact with his mother. That appears to have been fractious, and as a result it is obvious that this young accused has an unresolved anger, perhaps hatred, hatred and frustration towards his mother. That may only manifest itself when he is under the influence of drugs and alcohol, and other things take place. But this can only be viewed as an extremely serious offence.
I am satisfied the accused falls under the principles of a deprived upbringing, and those factors set out by Ms Tran apply in a reduction of penalty that otherwise would have applied, but several factors are pertinent. Being a bad mother is not an offence, burning down someone's house is. Threatening someone is and conducting behaviour such as this whilst under the influence of drugs to the point where the accused cannot remember what he did of course does not detract from the objective seriousness and moral culpability.
It perhaps more explains what happened, rather than justifies it. I consider that extremely carefully in respect of what sentence should be imposed for someone who has no criminal record, has had an extremely difficult and traumatic upbringing, that is how Mr McPherson sets it out in the report, and he is beset by drug issues which clearly address one, his mental health admissions in the past for what a Court can only view, based on Mr McPherson's report, a drug induced psychosis. Stopped taking or was on medication, it does not appear that was well connected, and as a result, still as a young man, has difficulty addressing drug and alcohol issues. Balancing all those considerations, and taking into account the factors under s 3A, what is the appropriate penalty to be imposed? (emphasis added).
Probation and Parole nominate the accused as a low risk. One has to balance that against the threats he made to the police, albeit whilst highly affected by substances, because of the nature of the offence and comments he made about having no recollection, balancing against the observations the police made, and quite clearly the fact that this offence involved not only danger to his mother, but danger to all the emergency personnel that responded, that at some point did not know if anyone was trapped in the house, and placed themselves in danger to attempted to get in.
That is balanced against a young man who has no prior criminal record, has pleaded guilty, and is assessed as good prospects of rehabilitation, subject of course to managing his drug and alcohol use and other factors (emphasis added).
Taking those factors into account, the only view the Court can take, based on the general deterrent issues and recognition of harm done to the victim and the community, can only be a term of imprisonment.[45]
[45] G documents, G2/40.
The Tribunal heard from a clinical psychologist, Dr Kwok, who provided a report dated 8 November 2021,[46] and gave oral evidence to the Tribunal.[47] She is a fellow of the College of Clinical Psychologists and College of Forensic Psychologists of the Australian Psychological Society. Dr Kwok had only limited time with the applicant and was heavily reliant on his self-reporting. She was unable to conduct a comprehensive assessment via video. She recommended a full psychological assessment, especially given his history of self-harm, suicidal ideation and psychotic-symptoms.
[46] ATB, 34.
[47] Transcript of Proceedings (1 December 2021) 50.

Dr Kwok described the applicant’s mental health history as follows:
Mental health history. Mr Corbett reported that, when he was seven years old, an incident occurred with a woman who was staying at his foster parents’ house. More specifically, he stated that he woke up early one morning and saw the woman sitting in the dark. He said the woman ‘came behind me and got a needle and put it into my arm and told me to shut up.’ Mr Corbett’s foster parents reportedly walked in and confronted the woman who said that she was checking for diabetes. Mr Corbett said the woman had tried to do this again and his foster parents asked him to not tell DoCS case workers.
18. Mr Corbett described himself as an ‘angry person’ who had been hypervigilant since childhood. He said that he enjoyed playing rugby, because this allowed him to ‘get my frustrations out.’ Mr Corbett said that he reacts easily when he feels that others do not understand him. He acknowledged that he would react by damaging things or hurting himself. Mr Corbett attributed this to the physical abuse he had experienced at home and at school as a child. He further alleged that an older girl at school had masturbated him, and he had not liked being touched by others since that incident.
19. Mr Corbett stated that he had seen multiple counsellors and a psychologist through DoC when he was seven years old. He could not recall much of these sessions and was told by his foster parents that he did not talk during the sessions. Although he saw school counsellors regularly, he said that he could not trust them. Mr Corbett reported that he did not seek further counselling after he left school.
20. Mr Corbett reported that he attempted suicide when he was twelve years old and had just started high school. He stated that he attempted suicide (cutting his wrist) at least twice when he was with his previous partner, and he tried to hang himself when she left him in 2019.
21. Mr Corbett reported that he ‘always’ had flashbacks and nightmares when he was growing up. He said that he had dreams of attacking people or engaging in other violent acts. He stated that the nightmares worsened in prison. Mr Corbett also mentioned that, when he was in prison, he thought the television was talking to him or that someone was talking to him through the television. He said that the voice told him to ‘not feel bad, [and] you did the right thing [putting the house on fire].’
She described his psychosocial history as follows:
25. Psychosocial history. Mr Corbett stated that he had a difficult childhood while he was living with his biological parents. In addition to being exposed to alcohol abuse, and emotional and physical abuse, he stated that there was often no food at home. Mr Corbett reported that he had stolen food from supermarkets in order to survive.
26. Although Mr Corbett had friends in the community, he claimed that his friends do not understand him and he preferred to be alone. He stated that he mainly spent time with people who had looked after him in the past such as past neighbours or the parents of friends who had helped him. Mr Corbett did not report many social activities, but stated that he used to play rugby and had started going to the gym to deal with his anger.
27. Mr Corbett stated that he moved back to live with his biological mother in 2019 and he had lived with her most of the time before he was in prison. He did not describe a positive experience living with his mother and stated that she was frequently drunk and said things such as ‘I should have killed you’ to him.
She provided the following mental health profile under the heading ‘undiagnosed mental health issues’.
56. Mr Corbett’s first five or six years of life were marked by parental alcohol abuse, neglect, and emotional and physical abuse. Children of parents who are alcoholics face increased risks of behavioural problems during childhood and mental health problems in adult life. These mental health problems include, but are not limited to, anxiety, depression and low self-esteem. When we factor in the likelihood that Mr Corbett had prenatal exposure to alcohol abuse (PAE), the dual exposure of PAE and adverse childhood experiences could also cause neurobiological damages which manifest as increased cognitive and behavioural dysfunction.
Indeed, Mr Corbett’s history indicates that his problems with depression, hypervigilance, anxiety and aggressive behaviours were present during his childhood. This included self-harm and suicidal behaviours (emphasis added).
Children with exposure to both PAE and trauma are also at increased risk of deficits in attention, memory, learning, and they exhibit more severe behavioural problems than children who had only been exposed to PAE or trauma in the absence of the other. Although Mr Corbett was referred to counselling after he was removed from his biological parents, it did not appear that he had engaged in treatment due to his lack of trust in professionals. This lack of appropriate intervention placed him at even greater risk of long term negative physical and mental health problems, and risky alcohol consumption and drug use behaviours.
Dr Kwok commented on the extent of impediments if Mr Corbett is deported to New Zealand as follows:
53. Mr Corbett reported that he has no family connections in New Zealand, because he did not have contact with his half-siblings as he was growing up. It appeared that his foster mother had returned to New Zealand, but I did not question Mr Corbett about the nature of their current relationship nor whether they had maintained contact during the past few years.
A primary source of stress for Mr Corbett is his belief that his social relationships offer him little support and his family relationships are distant and ridden with conflict (emphasis added).
Due to his tendency to withdraw from people, his friends may also not be available when needed. Based on Mr Corbett’s self-reports, his main support at this time is his current partner who lives in Sydney. He stated that she does not use drugs and is the only person who understands him and is helping him deal with his past negative life experiences. He also reported that his partner is willing to live with him while he builds a prosocial lifestyle in the community. Mr Corbett’s history indicates that he has very poor coping skills and he has difficulty placing trust on others. It would, therefore, be very difficult for him to reintegrate into the community, whether it is in Australia or New Zealand, without the support of his partner. There is no indication that Mr Corbett’s partner would move to New Zealand if he were forced to leave Australia.
54. I take into consideration that Mr Corbett had not lived in New Zealand since he was two years old. If he is forced to return to New Zealand, he would be required to address his drug and alcohol use problems, and mental health issues, while he is also adjusting to a new country where he has minimal social support and no work experience. Under these circumstances, there is a likelihood that he would not prioritise his treatment, placing him at greater risk of relapse (emphasis added).
Dr Kwok’s concluded:
·     Mr Corbett presents as having a low to moderate risk of re-offending and danger/threat/risk to the Australian community. This can be further reduced with treatment.
·     Upon condition that he does not reconnect with his biological mother, Mr Corbett presents as having a low risk of danger and threat to women and children (emphasis added).
·     Mr Corbett would require treatment for substance use as well as psychological treatment for other mental health issues including depression, poor emotional regulation, impulsivity, poor coping and trauma-related symptoms. He would benefit from a comprehensive mental health assessment due to his history of suicidal ideation and psychotic symptoms.
·     It is in Mr Corbett’s best interests to remain in Australia where he has the support of his partner to help him establish a prosocial lifestyle in the community.
Dr Kwok’s oral evidence did not deviate markedly from her written report. She stressed that any connection with his mother would be counterproductive.[48]
[48] Transcript of Proceedings (1 December 2021) 56.
The respondent’s solicitor argued that the presence of the applicant's mother in Sydney presented a serious challenge to his prospects.
Viewed as a whole the evidence concerning the applicant's upbringing and offending against his mother paints a picture of toxic and possibly irreparable relationship. Mr Corbett said in evidence that while there have been periods of good relations his offending has been provoked by abusive comments from his mother. And it's apparent that he has unresolved mental health issues arising from his childhood, which can only be described as traumatic.
We submit that it's apparent from Mr Corbett's mother's oral evidence yesterday that she takes no responsibility for Mr Corbett's removal into foster care and has no understanding of any boundary Mr Corbett may wish to or may have already have set in the relationship between them. She said she hopes and expects Mr Corbett would want to reconnect with her and live with her assuming an AVO could be varied or weren't in place. And the AVO, as we just discussed, does not prevent contact between the two.[49]
[49] Transcript of Proceedings (2 December 2021) 102.
DISCUSSION ON PC1
PC1 is concerned with the protection of the Australian community. The AVO contravention and the property damage offences are both intrinsically serious. His property vandalism was spontaneous and reactive. On neither occasion was it premeditated. The use of petrol as an accelerant was especially dangerous. The sentencing magistrate imposed a longer term for the offence, but there is no doubt that they are both serious offences. They were, however, the first custodial sentences imposed on the applicant.
The magistrate, with respect, properly took into account the trauma of his childhood. There is little doubt that he experienced psychological and possibly physiological trauma, leading to his removal from his natural parents.
Dr Kwok’s assessment of the risk of future offending was somewhat guarded. She stressed the importance of addressing his mental health issues and reliance on alcohol and drugs. The evidence does not suggest that the applicant is a danger to the community in the broad sense.
His relationship with Ms Naera is deeply conflicted. She is nevertheless his natural mother. The evidence is that for much of 2020 they lived together without conflict. As a result of his offending, he cannot reside with her for a lengthy period of five years. He has experienced the consequences of beaching an AVO, having suffered a long prison sentence. I find that should he remain in Australia the risk of harm to his mother is low.
His threats made against his brother, sister and law and child were out of keeping with the warmth of his relationship with them, and I accept Ms Williamson’s evidence that his comments were the product of a drug induced state.
CONCLUSION ON PC1
I find that PC1 weighs against revocation of the mandatory cancellation, but not decisively.
Family violence: PC2
Paragraph 8.2 of the Direction contains the following provision relating to family violence.
(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 (see paragraph (3) below).
(2)      This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence (emphasis added); and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(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 effect of repeated acts of family violence;
c)rehabilitation achieved at 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 (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
In considering the seriousness of the family violence engaged in by the applicant, I consider the aspects referred to in paragraph 8.2(3).
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
The applicant has been convicted of two offences involving family violence, the second of which is objectively more serious. I note however that the first offence was committed while he was sober and the second was committed in the course of a psychotic episode, probably induced by heavy drinking and drugs. I have explained above why I do not consider that there is a ‘trend’ of increasing seriousness.
b) the cumulative effect of repeated acts of family violence;
I note the cumulative effect of repeated acts of family violence.
c) rehabilitation achieved at 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 (particularly children);
iii.     efforts to address factors which contributed to their conduct; and
I note that the applicant has accepted responsibility for his behaviour and says that he is deeply ashamed.
CONCLUSION ON PC2
I find that this consideration weighs firmly against the revocation of the mandatory cancellation decision
Best interests of minor children in Australia affected by the decision: PC3
Paragraph 8.3(1) of the Direction requires decision-makers to determine whether revocation is in the best interests of a child affected by the decision. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made pursuant to paragraph 8.3(2). If there is more than one child affected, the Tribunal must consider the interests of each child individually to the extent that their interests may differ: paragraph 8.3(3).
Paragraph 8.3(4) provides that in considering the best interests of the child, the following factors must be considered where relevant:
a)    the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)    the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)    the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;
e)    whether there are other persons who already fulfil a parental role in relation to the child;
f)   any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)    evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen in any way, whether physically, sexually or mentally;
h)    evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
In his Request for Revocation application, the applicant stated that he had no minor children (whether biological, adopted or step-children), but he had twenty uncles and aunties, twenty cousins and nine nieces and nephews. He identified his brother Matenga as a close family member and provided his birthdate.[50]
[50] G2/75, Attachment G.
In his Statutory Declaration dated 25 November 2021, he identified the following siblings living in Australia:
(a)Bodean, his maternal half-brother, lives in Brisbane, and has one child in Australia in Australia;
(b)Terina, his maternal half-sister, lives in Melbourne, and has one three year old child living in Australia;
(c)Kristina, his paternal half-sister, lives in North Ryde, has one eight to nine year old child in Australia
(d)Matenga, his brother, lives in Sydney, and has one daughter living in Sydney.[51]
[51] Applicant’s Tender Bundle, 1
He also identified the following siblings living in New Zealand:
(e)Mihaidi, his maternal half-brother, with whom he had not had contact since 2017;
(f)Baden, his maternal half-brother.
He stated that Baden’s seven children live in the Penrith area.
He also declared, under the heading My Nieces and Nephews as follows:
36. I have my half-brothers and full brother in Australia. I have nine (9) nieces and nephews from my older brother Baden. And, I have one (1) niece from Matanga. I have a great relationship with my nieces and nephews. Baden and his children are living in Penrith. They are all between 8-20 years old. 5 of the children are under 18 years old. Before coming to jail, I used to help them a lot. I always try to give whenever they need anything. I still talk to them on the phone with my brother.
37. Before jail I use to see them regularly. They were in foster care, living in Campsie with my aunty. They would come over and visit my mum, their grandmother. The visits where scheduled because the kids were in foster care. The kids were in care because my brother and the kids mum were drug addicts. The children a are half aboriginal.
38. Now I speak with these kids through FB messenger, Instagram and they also video call.
39. I want to see them grow and do show them the right things like work. I have a lot of skills. I want to show them a life outside of drugs and violence. To break the model/cycle.
40. Also, the kids are half Aboriginal. Its important for them to know their family and have positive role models in their lives.
41. Growing up, Matanga and I are very close. Despite what’s happened, we’re still very close. He has a 2-year-old daughter. I speak with them regularly. I was living with my brother’s family when my niece was born. I remember buying my niece a stuffed elephant toy when she was born, and know she still has it now. She walks around with the teddy elephant when I see her on the phone. She knows who I am she calls me ‘unc’ she can’t say uncle yet.
42. I would never hurt my nieces and nephews. I know I said it to police on the night of the fire but it’s just not true.

At paragraph 4 of his Statutory Declaration he stated:
47. If I get another chance, I want to return to work full time. I hope to move in with partner Kareemah in the future. I must continue with drug & alcohol counselling. I need stability in my life and look forward to reconnecting with my brother Matenga, his partner Taylor and my niece …
In his oral evidence to the Tribunal, he identified a number of children under 18 to whom he is related. It should be said that he recalled each of their birthdates and ages.
The evidence supports a finding that there are potentially six children under 18 who may be affected by a decision to remove the applicant. The applicant identified Baden’s three sons and two daughters together with their birthdates giving ages for the boys of 16, 14 and two; and for the girls of 13 and 12 years old.[52] The applicant said that he was closest to the oldest boy.
[52] Transcript of Proceedings (1 December 2021) 9.
I note that under the Direction if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
I note that in considering the nature and duration of the relationship between the child and the non-citizen, less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact).
It would seem that in relation to Baden’s children there has been some limited contact but it was sporadic and occurred when the children were brought to his mother’s house which occurred approximately on a fortnightly basis. He would see them when he was not working. It was for ‘a little bit’ and even before he went to prison it was only on a handful of times throughout a given year. He said that he would like to see them grow and do good things, be there with them physically.
The applicant also identified the two year old daughter of his brother as relevant to this category.
The Tribunal is required to consider the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements.
Under present circumstances, it is not possible to find that he is likely to play a positive parental role in the future, given his past history of drug and alcohol use and his volatile temperament.
Although there is no basis for inferring any negative impact on Baden’s children as a result of his past conduct, any repetition of such conduct is likely to have a negative impact on the children. I note that Matenga’s daughter is listed as a Person in Need of Protection as a result of threats made by the applicant during his interview with police. Apart from these threats, there is no evidence that the applicant has sought to harm this child. There is no direct evidence that any of the children have suffered or experienced any physical or emotional trauma arising from the applicant’s conduct. I note that his niece was present during the domestic incident involving his brother and sister-in-law to which the police were called a few days before the second incident. However, I am satisfied that the applicant was not a perpetrator of any violence on that occasion, and it is not unlikely that he was attempting to protect his sister-in-law.
I note that Baden’s children are presently in foster care and there is no suggestion that the applicant would be able to take on a parental role. There is nothing to suggest the likely effect of the applicant’s removal will be negative, taking into account the potential for communication via social media, and the relative ease of travel between New Zealand and Australia.
There is no evidence of the views of these children before the Tribunal.
CONCLUSION ON PC3
The evidence before the Tribunal does not support a finding that any of the children under eighteen identified by the applicant will be adversely affected by a decision to remove him. They are either too young, or the relationship is too ephemeral, to justify a finding that his removal will have an adverse impact.
I therefore find that PC3 is neutral.
Expectations of the Australian community: PC4
Paragraph 8.4 provides:
(1)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 to not allow such a non-citizen to enter or remain in Australia (emphasis added).
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The applicant’s assault upon his mother amounts to family violence. This is serious conduct and paragraph 8.4(1) provides that the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia. However, a significant feature of this case is that the applicant has been raised in Australia from infancy. Paragraph 5.2(4) of the Direction states:
Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens 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 by noncitizens who have lived in the Australian community for most of their life, or from a very young age (emphasis added).
The principle of higher tolerance applies to the applicant. He has spent nearly all of his life in Australia.
To some extent the ‘norm’ referred to in paragraph 8.4(1) and the principle articulated in paragraph 5.2(4) pull in opposite directions. In the circumstances of this particular case, I consider that while PC4 weighs against the applicant, it does not weigh heavily against him.
CONCLUSION ON PC4
I find that PC4 weighs against the applicant, but not heavily.
Other considerations
Paragraph 9.1 of the Direction states that in making a decision under section 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i. strength, nature and duration of ties to Australia;
ii. impact on Australian business interests
OC1: international non-refoulement obligations
This consideration has no relevance.
OC2: Extent of impediments if removed
Paragraph 9.2 refers to the extent of impediments if removed
(1)Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The applicant’s foster parents returned to New Zealand, where they now live in retirement. Their joint character reference was tendered in evidence.
It is a loving and supportive reference. By his own account, they succeeded in providing him with a secure home. His evidence is that they were kind and caring, and firm. Their presence in New Zealand might be thought to ease his pathway to reintegration there, but the evidence is that they are now in a state of infirmity and advanced years, with limited resources.
The respondent tendered material provided by New Zealand government sources relating to returning offender legislation. Returning offender legislation provides for ongoing monitoring.[53] It applies to:
Anyone who was sentenced to imprisonment for more than a year and who returns to New Zealand within six months of being released from custody overseas. Other people who have been released from custody more than six months ago, but who were still subject to monitoring and supervision in an overseas country prior to their return to New Zealand may also be subject to a Returning Offenders Order.
If you have been released from prison more than six months ago but were sent straight to a detention centre, you will still be monitored by Community Corrections.
How long will I have to be supervised in New Zealand on my return?
The period of supervision will be based on the length of the sentence you served overseas. The shortest time is six months.
[53] Returning Offenders (Management and Information) Act 2015 (NZ).
The respondent also provided an information sheet indicating the social welfare support available to returning New Zealand citizens. The information is generic and does not indicate what, if any, support the applicant is likely to receive.
The complexities and subtleties of modern New Zealand society, its advancement as an inclusive multi-cultural society, its recognition as Maori as tangata whenua (people of the land – the original inhabitants) is foreign to him and would be foreign to many Australians. The applicant is not familiar with Maori traditions and culture (Maoritanga). In his statutory declaration, he said that his foster dad is a Kiwi, while his foster mum is a Maori.
Despite that, I only know only Australian culture. My family raised me in Australia and it’s all I know. We don’t practice Maori traditions at home. I don’t know the haka or national anthem. NZ culture is foreign to me.
Australians are now very familiar with the plight of Aboriginal children removed from their parents, culture and traditions at a young age.[54] Persons removed as infants and returned as adults may experience social alienation and have no sense of ‘belonging’. Reassimilation is especially challenging for members of a particular ethnic group stripped of their culture. The applicant was removed from his Maori heritage when he was brought to Australia as a child. Were he to be returned to New Zealand, any tension may rise no higher than gentle teasing - about being an Australian in Maori skin. Anything more negative would almost certainly increase his sense of alienation.
[54] Human Rights and Equal Opportunity Commission, 1997, Sydney, National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (Australia).
The applicant is young and in good health. Nevertheless, Dr Kwok is concerned that his return to New Zealand may place him at risk of harm. She identified in her relatively brief interview with him that he had attempted self-harm not only as a juvenile but also as an adult. Given the prevalence of male suicide, this is not to be ignored.[55] However, there is no independent verification (for example, hospital or counselling records) of these references to self-harm as a child.
[55] According to an Australian Government study, in 2019 there were 2,502 male suicides and 816 female suicides. This is a remarkable and little known statistic. Australian Institute of Health and Welfare, Suicide and Self-harm monitoring
I accept there is some possibility of ongoing substance abuse and psychological harm if returned to a country where he is socially isolated and has no work experience.
Despite his youth and physical health, the impediments during this period are likely to be significant.
CONCLUSION ON OC2
I find that this consideration weighs heavily in favour of revoking the mandatory cancellation decision.
OC3: impact on victims
Paragraph 9.3 refers to the impact on victims in the following terms:
(1)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.
There is no evidence before the Tribunal to the effect that allowing the applicant to remain in Australia would harm or further harm any victim. In fact, those affected by his behaviour all spoke in favour of him being allowed to stay.
For example, the applicant’s mother said she wanted her son to stay in Australia. She did not fear ‘her baby’ and had no concerns about her personal safety.[56] Matenga, his brother, expressed a similar view. His sister-in-law, Ms Williamson, did not want him to be removed from Australia either. She had no idea why the AVO was imposed and was ‘speechless’ when she found out about it. She was ‘never contacted’. Neither she nor her daughter was in need of protection. She was not in the least fearful of him. She was happy for him to spend time with her daughter unsupervised. When directed to the comments made by the applicant after his arrest, she said that he was not ‘in the right state of mind’ and that it was probably just said in rage or because he was under the effect of some sort of substance.[57]
[56] Transcript of Proceedings (1 December 2021) 40.
[57] Transcript of Proceedings (1 December 2021) 45.
CONCLUSION ON OC3
I find that this consideration is neutral and weighs neither for nor against revoking the visa cancellation.
OC4.1: links to the Australian community, including the strength, nature and duration of ties to Australia
Under paragraph 9.4.1(1) the Tribunal is required to consider any impact of the decision on the non-citizen'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.
His sibling relationships are set out in a statutory declaration dated 25 November 2021.[58]
(a)Baden (maternal half-brother with 7 children in Penrith area). Aged around 41 years old. He is living in New Zealand;
(b)Mihaidi (maternal half-brother) - living in New Zealand. No contact. Haven’t spoken to him since 2017;
(c)Bodean (maternal half-brother in Brisbane). Around 28 years old. He has 1 child in Australia and 3 in New Zealand;
(d)Terina (maternal half-sister in Melbourne). She has 1 (3 years old) child in Australia;
(e)Kristina (paternal half-sister in North Ryde). She has 1 (8-9 years old) child in Australia;
(f)Matenga (full brother in Sydney) Aged: 25 years old. He has 1 daughter.
[58] ATB, 1.
Baden and Mihaidi live in New Zealand and therefore are not relevant under this consideration. Bodean lives in Brisbane and Terina lives in Melbourne. The impact upon them is likely to be minimal.
Matenga and Kristina live in Sydney. The Tribunal has little information about his relationship with Kristina. However, he has an important relationship with Matenga, and I am satisfied that his removal from Australia is likely to have an adverse impact on Matenga.
As to his sister in law, Ms Williamson, she said that his removal would affect her and her daughter very badly. In her evidence she said:
And what's the relationship like between Mr Corbett and your daughter?‑‑‑To sum it up in a few words from the moment she was in my womb to the moment she was born Te Naera was there like the whole way, so he was like our third person.
And when you say your third person can you explain that?‑‑‑Well, being pregnant with [daughter] and once I'd given birth I was a new mum and Te Naera was living with us and he honestly he took a lot of slack. He helped me a lot when it came to bathing, feeding, just clothing, naps, just even, you know, settling her or holding her while I had a shower, just the simple things. But he carried on with those traits like as she grew up.
And how do you think your daughter would be impacted if Mr Corbett was deported to New Zealand?‑‑‑To be honest it would impact her a lot. They video call all the time, she's still - even she's still able to (indistinct) and constantly speak to her and talk her or she baby talks but they talk, you know, video call all the time. She knows exactly who he is, yes. [59]
[59] Transcript of Proceedings (1 December 2021) 45.
I refer to the applicant’s relationship with Ms Diane Ryan – a family friend. She said that she was a friend of the applicant’s foster parents. In response to questions from the applicant’s solicitor, she said that she would be able to provide accommodation, for as long as it took him to get settled. ‘He’s here for whatever time it takes’.[60]
[60] Transcript of Proceedings (1 December 2021) 64.
His partner expressed the hope that they would live together in the future. Ms Naser had never been in fear of him and wanted to see how his rehabilitation went before committing to moving in together. She thought he needed help with his mental issues and wanted to see that the change was genuine. She had just finished her third year of an accounting degree. She would consider moving to New Zealand.
Under paragraph 9.4.1(2), the Direction provides:
Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

The applicant has spent his entire life in Australia, arriving as an infant.
His employment record is solid. At one point he was working two jobs.[61]
[61] Transcript of Proceedings (1 December 2021) 19.
I have also considered above the strength, duration and nature of his family links.
CONCLUSION ON OC4.1
I find that this consideration weighs heavily in favour of revoking the mandatory cancellation decision.
OC4.2: impact on Australian business interests
The Tribunal is required to consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia. I do not consider that this factor (impact on Australian business interests) is relevant.
RESOLUTION
Factors in favour of not revoking the visa cancellation:
·PC1: Safety of the community (against revocation but not decisively);
·PC2: Family violence (firmly against revocation).
·PC4: Expectations of the community (against revocation but not heavily).
Factors in favour of revoking the visa cancellation:
·Impediment to resettlement (OC2) (heavily in favour of revocation);
·Links to the Australian community (OC4.1) (heavily in favour of revocation);
Factors that are neutral:
·The best interests of minor children (PC3);
·Impact on victims (OC3);
Factors that are not relevant:
·Non-refoulement (OC1);
·Impact on Australian business interests (OC4.2).
FINAL COMMENTS AND CONCLUSION
The applicant faces removal from Australia where he was lived his entire life except for a few months, with a resulting (second) loss of identity (as a Maori-Australian). The consequences for him are extremely grave. The Tribunal needs to be positively satisfied as to the correct and preferable decision.[62]
[62] Briginshaw v Briginshaw (1938) 60 CLR 336.
Three of the primary considerations weigh against revoking the mandatory cancellation decision. Only two of the ‘other considerations’ weigh in favour of revoking the decision. I note that paragraph 7(2) states that primary considerations should generally be given greater weight than the other considerations (emphasis added).
However, I think that this case provides an exception to the general principle stated in paragraph 7.2.
The applicant has lived in Australia since infancy. He has a complex relationship with his mother, with whom he reconnected after years of separation. Although that relationship is very difficult, the evidence does not support a finding that it is irreparably damaged. They did live together without conflict in 2020 until the blow-up. The possibility of some future reconciliation is not to be ignored. This is not a case of wholesale maternal rejection. Drugs and drink had a large role to play in the events of 21 September 2019.
He is young and he has lost his Maori identity (through no fault of his own). He does not have a protracted criminal record. The likelihood of recidivism is not high and his prospects of rehabilitation are good. His time in prison and immigration detention should serve as a powerful deterrent.
Two significant factors relate to the level of commitment expressed by Mrs Ryan, and of course, his partner Ms Naser. Both women impressed the Tribunal with their compassion and sincerity. Mrs Ryan has offered him long term accommodation, and this is a very important protective factor. Ms Naser offers him the possibility of a long term relationship. Of course, much will depend on his progress, and she may change her mind. But her present commitment provides a powerful reason for self-improvement.
His youthful life spent almost entirely in this country make a strong claim for a ‘second chance’. I do not think that the Australian community would begrudge him a second chance. If he fails again, he faces the prospect of removal to a country he belongs to in law but little else.
I am satisfied, following an assessment and evaluation of the various considerations identified in the Direction, that the cancellation should be revoked.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision made by the delegate, dated 27 September 2021, to refuse to revoke the Mandatory Visa Cancellation Decision, and in substitution, decides that the cancellation of the Applicant’s Special Category (Subclass 444) visa is revoked.

I certify that the preceding 169 (one hundred and sixty - nine) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

.....................................[sgd]...................................
Associate
Dated: 21 January 2022

Dates of hearing: 1 & 2 December

Solicitors for the Applicant: Ms Marta Mamarot, South West Migration & Legal Services

Solicitors for the Respondent: Mr Edwin Taylor, Mills Oakley

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Immigration

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Citations

Corbett and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 5087

Most Recent Citation

LYPM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2601

Cases Citing This Decision

LYPM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2601

Cases Cited

Statutory Material Cited

FYBR v Minister for Home Affairs [2019] FCAFC 185

Briginshaw v Briginshaw [1938] HCA 34

Briginshaw v Briginshaw [1938] HCA 36

Dates of hearing:	1 & 2 December
Solicitors for the Applicant:	Ms Marta Mamarot, South West Migration & Legal Services
Solicitors for the Respondent:	Mr Edwin Taylor, Mills Oakley