Emery and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

Emery and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 16 (3 January 2023)
Division:GENERAL DIVISION
File Number: 2022/8383
Re:Maia Rawiri Charles Emery
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member Theodore Tavoularis
Date of Decision: 3 January 2023
Date of Written Reasons: 12 January 2023
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside and substitutes the decision made by the delegate of the Respondent dated 31 March 2022 to cancel the Applicant’s visa with a decision that the Tribunal does not exercise the discretion conferred by section 501(2) of the Migration Act 1958 (Cth).
........................[SGD]..........................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Cancellation of Applicant’s Class TY (Subclass 444) Special Category (Temporary) visa under s 501(2) of the Migration Act 1958 (Cth) – where Applicant does not pass the character test – reasonable suspicion of association with an organisation pursuant to s 501(6)(b) – consideration of Ministerial Direction No. 90 – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Stevens v Minister for Immigration and Border Protection (2016) 153 ALD 346
PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Secondary Materials
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Index
Introduction and background
Issues
Does the Applicant pass the Character Test?
Has the Applicant been or is he a member of a group or organisation or has he had an association with a group, organisation or person?
Is the group, organisation or person involved in criminal conduct?
Can a ‘reasonable suspicion’ be formed that the Applicant was sympathetic towards, or supportive of, the Mongrel Mob’s criminal conduct?

Is the Tribunal’s discretion pursuant To S501(2) engaged?
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
Primary Consideration 1 – Protection of The Australian Community
The Nature and Seriousness of the Applicant’s Conduct to Date
Paragraph 8.1.1(1)(a)(i)
Paragraph 8.1.1(1)(a)(ii)
Paragraph 8.1.1(1)(a)(iii)
Paragraph 8.1.1(1)(b)(i)
Paragraph 8.1.1(1)(b)(ii)
Paragraph 8.1.1(1)(b)(iii)
Paragraph 8.1.1(1)(b)(iv)
Paragraph 8.1.1(1)(c)
Paragraph 8.1.1(1)(d)
Paragraph 8.1.1(1)(e)
Paragraph 8.1.1(1)(f)
Paragraph 8.1.1(1)(g)
Conclusion about the nature and seriousness of the Applicant’s conduct

The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Nature of harm should the Applicant engage in further criminal or other serious conduct
Likelihood of engaging in further criminal or other serious conduct
Conclusions about risk

Is the risk of harm affected by any of the factors referred to in sub-paragraph 8.1.2(2)(c) of the Direction?
Conclusion: Primary Consideration 1
Primary Consideration 2: Family Violence
Who are members of the Applicant’s family?
Did any of the Applicant’s conduct constitute family violence?
Assessment of the seriousness of the Applicant’s family violence
Conclusion: Primary Consideration 2
Primary Consideration 3: The best interests of minor children in Australia
Identification of the relevant minor children
The Applicant’s contentions
The Respondent’s contentions
Application of factors in paragraph 8.3(4) of the Direction to the relevant children
Application of factors in paragraph 8.3(4) of the Direction to the niece, Child SH
Findings about the relevant minor children
Conclusion: Primary Consideration 3
Primary Consideration 4: The Expectations of The Australian Community
The relevant paragraphs in the Direction
Conclusion: Primary Consideration 4

Other Considerations
Other Consideration (a): International non-refoulement obligations
Other Consideration (b): Extent of Impediments if Removed
The Applicant’s written submissions
The oral evidence by and on behalf of the Applicant

Other Consideration (c): Impact on victims
Other Consideration (d): Links to the Australian Community
(1) Strength, nature and duration of ties
i. Impact of non-revocation on the Applicant’s immediate family
ii. Strength, nature, and duration of “other ties” – length of residence
iii. Strength, nature, and duration of “other ties” – family and other social links
(2) Impact on Australian business interests
Weight allocable to Other Consideration (d): links to the Australian community

Findings: Other Considerations
Conclusion
Decision
Annexure A
REASONS FOR DECISION
Senior Member Theodore Tavoularis
12 January 2023
Introduction and background

The Applicant is a 34 year old citizen of New Zealand who came to Australia on a Class TY (Subclass 444) Special Category (Temporary) visa (‘the visa’) in 2013 when he was 25 years old. While he had visited Australia previously, there seems little or no contest between the parties that he has resided in Australia on a permanent basis since 3 March 2013. The Applicant confirmed as much in both his evidence in chief[1] and in cross-examination.[2]
[1] Transcript, p 6, lines 9-10.
[2] Ibid, p 42, lines 12-14.
The Applicant has an unremarkable offending history in both New Zealand and Australia. In New Zealand, he has the following conviction[3]:
[3] G1, p 39.

Court

Result Date

Offence Date

Offence Description

Result

Tauranga DC

05/11/2009

01/11/2009

Disorderly Behaviour S4

S/Offences Act

Convicted and sentenced:

fine: $400

Court costs: $130

The Applicant’s offending history in Australia is as follows[4]:
[4] Ibid, p 38.

Court

Result Date

Offence Date

Offence Description

Result

Beenleigh Magistrates Court

21/04/17

01/01/2017

[PPRA] 790(1) Assault or obstruct police officer

No conviction recorded

Fined: $300

The Applicant also has a relatively unremarkable Traffic History in Australia which may be stated thus[5]:
·on 26 April 2007 he committed the offence of driving while never having held a driver licence. He was fined the sum of $335.
·on 3 July 2014, he committed the offence of failing to stop at a red light. He incurred three demerit points and was fined the sum of $341.
·on 30 August 2014, he exceeded the speed limit by at least 13km/h but not more than 20km/h. He incurred three demerit points and was fined the sum of $227.
·on 26 November 2014, he exceeded the speed limit by less than 13km/h. He incurred one demerit point and was fined the sum of $151.
·on 28 July 2018, he drove with a blood alcohol reading of .140 which was over the mid-range but not over the high-range alcohol limit. He was fined the sum of $1,100 and was disqualified from driving for eight months.
·On 22 August 2018, his driving privileges in Queensland were suspended/disqualified;
·On 6 July 2020, he committed the offence of not holding the necessary driver licence to drive a specific class of vehicle. He was fined the sum of $444.
[5] R1, pp 1-2.
On 7 September 2018, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Respondent’ or ‘the Minister’) sent the Applicant a Notice of Intention to Cancel the visa pursuant to section 501(2) of the Migration Act 1958 (‘the Act’).[6] On 25 November 2018 the Applicant made written representations to the Respondent going to the issue of why the visa should not be cancelled.[7]
[6] G1, p 41.
[7] Ibid, pp 183-202.
On 31 March 2022, a of the Respondent reasonably suspected that the Applicant had been a member of, or had an association with the Mongrel Mob which had been declared an ‘identified organisation’ pursuant to the Serious and Organised Crime Legislation Amendment Act 2016 (Qld). According to a media release appearing in the material, the then Attorney-General of Queensland said the following about the Mongrel Mob:
‘This is an organisation with the attributes of an outlaw motorcycle gang with violent initiation processes, Nazi insignia and motto and members who outside Queensland have been involved in murder, armed robberies, extortion, home invasion, firearms and drug offences.’[8]
[8] G1, p 178.
Based upon his involvement with the Mongrel Mob, the delegate found that the Applicant failed the character test pursuant to s 501(6)(b) of the Act. The Delegate then determined to cancel the Applicant’s visa via an application of Ministerial Direction 90 (‘the Direction’[9]). There followed notification from the Respondent’s Department (on 11 October 2022) of an intention to cancel the visa.[10] On 12 October 2022 the Applicant applied to this Tribunal for review of the abovementioned decision of the delegate made on 31 March 2022.
[9] 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.
[10] G1, pp 10-12.
The Hearing of this application proceeded before me on 5 and 6 December 2022. The Hearing received oral evidence from:
·the Applicant;
·his partner, Ms Ellen Powell;
·his Mother; Ninotchka Taukiri; and
·from the Psychologist Dr Jacqui Yoxall.[11]
[11] Dr Yoxall’s curricula vitae appears in the material. (see G1, pp 239-246). She is a psychologist and associate professor in allied health (see G1, p 238).
The Hearing also received written evidence which I caused to be particularized in an Exhibit List which was agreed to by the parties at the commencement of the Hearing.[12] This Exhibit List is attached to these written Reasons and marked ‘Annexure A’.
[12] See Transcript, p 3, lines 23-32, for the Applicant’s acceptance of the Exhibit List; see also, p 3, lines 34-43, for the Respondent’s acceptance of the Exhibit List.
Issues
Section 501(2) of the Act provides that:
‘(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.’
Section 499(2A) of the Act provides that in determining an application seeking to set aside the cancellation of a visa pursuant to s501(2) of the Act, the Tribunal must have regard to the Direction. For present purposes, the Direction:
·at its Part 2 ‘Exercising the discretion’, contains guidance for decision-makers; and
·
at its Part 1, contains certain Principles that must be considered by a decision-maker in approaching the task of making a decision under s 501

(or s 501(CA)) of the Act;
·at its ‘ANNEX A – Application of the character test’, makes plain that if a non-citizen does not pass the character test, s 501(2) of the Act is enlivened such that the non-citizen’s visa can be cancelled.
The abovementioned Part 1 of the Direction, specifically at paragraph 5.2 (‘Principles’), provides the framework within which decision-makers are required to approach the task of whether or not to exercise the discretionary power conferred by s 501(2) to cancel a visa that has been previously granted to a non-citizen. Summarised where appropriate, the principles are as follows:
(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.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or 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 have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable 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 non-citizens 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.
(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 measurable risk of causing physical harm to the Australian community.
The abovementioned Part 2 of the Direction points out that, ‘Informed by the principles in Paragraph 5.2 [of the Direction], a decision-maker must take into account the considerations identified in sections 8 and 9 [of the Direction], where relevant to the decision.’ Paragraphs 8 and 9 of the Direction (expressed as ‘sections 8 and 9’ in the Direction itself) respectively stipulate four ‘Primary Considerations’, and four ‘Other Considerations’ by which I must be guided in making my decision. The Primary Considerations I must take into account are:
‘(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.’[13]
[13] Direction No 90, para [8].
The Other Considerations which, where relevant, I must take into account, “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.’[14]
[14] Direction No 90, para [9(1)].
Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)Information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)One or more Primary Considerations may outweigh other Primary Considerations.
There are two issues presently before the Tribunal:
(a)character test: whether there is a reasonable suspicion that the Applicant does not pass the character test, and whether the Applicant satisfies the Tribunal that he passes the character test[15] and, if not;
(b)exercise of discretion: whether the Tribunal should not exercise its discretion conferred by s 501(2) to cancel the Applicant’s visa.
[15] Section 501(2) of the Act.
If the Applicant succeeds on either the ‘character test’ ground or the ‘exercise of discretion’ ground, the weight of authority indicates that the Tribunal must not exercise the power conferred by s 501(2) to cancel the visa previously granted to the Applicant. This would, in turn, involve the setting aside of the delegate’s decision made on 31 March 2022.
I will now address – in the context of the present case – each of the ‘character test’ and ‘exercise of discretion’ grounds in turn.
Does the Applicant pass the Character Test?
The character test is defined in s 501(6) of the Act. Section 501(6)(b) of the Act provides relevantly that a person does not pass the character test if:
(b)the Minister reasonably suspects:
(i) that the person has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person; and
(ii) that the group, organisation or person has been or is involved in criminal conduct; or
The Applicant takes an equivocal position about whether or not he passes the character test. In the Statement of Facts, Issues and Contentions (‘SFIC’) filed on his behalf a contention is made that the Applicant ‘…nevertheless passes the character test under s 501(6) [of the Act] not withstanding his previous association with the Mongrel Mob.’ However, in closing oral submissions made on the Applicant’s behalf, his representative said:
‘I think the way the provisions are is that he has failed the character test based on that association, and then we have this discretionary activity where we will look at what his conduct has been, and what his risk then is, and how will the community – does the community require protection from that.’[16]
[16] Transcript, p 99, lines 4-8.
The Respondent’s representative said the following in oral closing submissions:
‘It seems like from what I apprehend in Ms Samuta’s submissions were that the character test doesn’t seem to be an issue although it’s probably something which will still need to be considered.’[17]
[17] Ibid, p 104, lines 25-27.
Rather than vacuously finding that the Applicant does not pass the character test pursuant to the above respective oral submissions, I will, out of an abundance of caution, proceed to make a finding on this first issue. Section 501(6)(b) of the Act relevantly provides the circumstances in which a person does not pass the character test (see paragraph [20] of these Reasons).
While the necessary ‘reasonable suspicion’ should be based on reasonable grounds,[18] the formation of a reasonable suspicion is ultimately a matter for the decision maker. Section 2 of Annex A of the Direction provides guidance to decision makers in determining whether a person does not pass the character test in circumstances where that person ‘(a)…has been or is a member of a group or organisation, or has had an association with a group, organisation or person and (b) that the group, organisation or person has been, or is, involved in criminal conduct.’ Stated in full, this guidance commentary comprises the following:
[18] See Stevens v Minister for Immigration and Border Protection (2016) 153 ALD 346, per Charlesworth J at para [14(5)].
(1)A person does not pass the character test if the minister reasonably suspects:
a.That the person has been or is a member of a group or organisation, or has or has had an association with a group, organisation or person; and
b.That the group, organisation or person has been, or is, involved in criminal conduct.
(2)A suspicion is less than a certainty or a belief, but more than a speculation or idle wondering. For a suspicion to be reasonable, it should be:
a.a suspicion that a reasonable person could hold in the particular circumstance; and
b.based on an objective consideration of relevant material.
(3)A member is a person who belongs to a group or organisation. The evidence required to establish reasonable suspicion of membership of a group or organisation will depend on the circumstances of the case. Decision-makers should note that failure of this limb of the character test does not require an assessment that the person was sympathetic with, supportive of, or involved in the criminal conduct of the group or organisation. It is sufficient under this element of the test that the decision-maker has reasonable suspicion that:
a.the person has been, or is a member of a group or organisation; and
b.the group or organisation has been, or is, involved in criminal conduct.
(4)In establishing association, the following factors are to be considered:
a.the nature of the association;
b.the degree and frequency of association the person had or has with the individual, group or organisation; and
c.the duration of the association.
(5)Decision-makers should note that in order for a person to fail the association limb of the character test, the delegate must have a reasonable suspicion that the person was sympathetic with, supportive of, or involved in the criminal conduct of the person, group or organisation – mere knowledge of the criminality of the associate is not, in itself, sufficient to establish association. In order to not pass the character test on this ground, the association must have some negative bearing upon the person’s character.
(6)In some cases the information concerning association will be protected from disclosure under the Act. In all cases, great care should be taken not to disclose information that might put the life or safety of informants or other people at risk.
Has the Applicant been or is he a member of a group or organisation or has he had an association with a group, organisation or person?

Having regard to the material before me, I am satisfied that the Applicant does not pass the character test on the basis set out in s 501(6)(b) of the Act. The material relevantly discloses the following:
·he has told police of his membership of the Mongrel Mob and of becoming a ‘patched member’ of that organisation on 23 November 2017;[19]
·in his own statement he has made a similar acknowledgement of his membership with the Mongrel Mob;[20]
·there is photographic evidence in the material of the Applicant associating with senior members of the Mongrel Mob, including its President;[21]
·the police have observed identifying marks on the Applicant’s person connecting him to the Mongrel Mob including a ‘thirteen tattoo’ on his right lower leg which is a tattoo that identifies him as a Waikato faction member of the Mongrel Mob;[22]
·the police have recorded observations of the Applicant associating with the Mongrel Mob on 25 April 2018 (at an ANZAC Day service); 13 July 2018 (while travelling in a vehicle with the President of the Mongrel Mob); 27 July 2018 (the Applicant was intercepted travelling in the President’s vehicle while in company with other Mongrel Mob members);[23]
[19] G1, p 147.
[20] G1, p 211, para [138].
[21] Ibid, p 149.
[22] Ibid, p 148.
[23] Ibid.
I am therefore satisfied that pursuant to s 501(6)(b)(i) the Applicant has been a member of a group or organisation comprising the Mongrel Mob.
Is the group, organisation or person involved in criminal conduct?
The next question is whether it can be safely found that the Mongrel Mob ‘…has been or is involved in criminal conduct’ pursuant to s 501(6)(b)(ii). I am of the view that such a finding can be readily made for the following reasons:
·I have earlier referred to the press release of the then Attorney-General for Queensland who noted that the Mongrel Mob: ‘…is an organisation with the attributes of an outlaw motorcycle gang with violent initiation processes, Nazi insignia and motto and members who outside Queensland have been involved in murder, armed robberies, extortion, home invasion, firearms and drug offences.’[24]
[24] G1, p 152.
·the police have noted that the Mongrel Mob is ‘…often involved in public display of violence and unruly behaviour.’;[25]
[25] Ibid, para [5].
·the number of media articles before the Tribunal referring to criminal conduct committed by or otherwise referrable to the Mongrel Mob comprising:
oan article in the Daily Mail newspaper from 14 March 2018 containing the following:
‘One of New Zealand's most notorious gangs – with, as one media outlet calls "a history of child rape, kidnapping and public brawling" – is making a move into Australia.
The Mongrel Mob has dominated New Zealand's criminal scene since they sprouted up in 1962, the Daily Mail reports, "with its members often distinguishing themselves with facial tattoos and wearing red".
Now the gang are in Australia, recruiting for chapters in Perth, Melbourne, the Gold Coast and Darwin – sometimes sending members from New Zealand or interstate to make up the numbers.
In New Zealand, the gang has a long violent history, from brawling with Hells Angels during the 1970s to multiple rape charges in the 80s.’[26]
[26] Ibid, p 75.
oA media article dating from 6 April 2018 referring to the criminal conduct of members of the Mongrel Mob’s Darwin chapter:
‘Within three months of the Mongrel Mob's Darwin chapter opening, police sources told the NT News they knew of four assaults directly linked to members that had gone unreported.
They also claimed one incident was a brawl between a member of the Mongrel Mob and a member of the Hells Angels.
In Perth, police are actively looking to deport members of the Mongrel Mob who misbehave, keeping a close watch on those who have moved from New Zealand.
The move comes as New Zealand police launch a new squad in Tauranga, dedicated to grappling with organised crime, in particular Australian motorcycle gangs.
The Herald reported yesterday that members of the Comancheros and Bandidos have been seen riding in the Bay of Plenty region recently.
Police have warned the more sophisticated and ruthless Australian gangs, in particular the Comancheros, could radically change the landscape of the criminal underworld in New Zealand.
The possibility of these newer criminal players gaining a foothold in Tauranga comes after the Rebels, another Australian gang, and the Head Hunters established chapters in the city in recent years.’[27]
[27] G1, p 78-79.
oA further media article from the Daily Mail newspaper from 13 March 2018 records the following:
‘A violent, overseas outlaw group with a history of child rape, kidnapping and public brawling has recruited bikies in Australia.
The Mongrel Mob has dominated New Zealand's criminal scene since they sprouted up in 1962, with its members often distinguishing themselves with facial tattoos and wearing red.
Now the gang are in Australia, recruiting for chapters in Perth, Melbourne, the Gold Coast and Darwin – sometimes sending members from New Zealand or interstate to make up the numbers.
Across the Tasman, the gang has a long violent history, from brawling with Hells Angels during the 1970s to multiple rape charges in the 80s.
One member, [name redacted], was jailed after raping and murdering a 16-year-old girl in June 1987, Stuff reported.
Seven years later, they launched a rehabilitation program for methamphetamine addicts with the help of the Salvation Army.
The Mongrel Mob are sometimes fond of flaunting their wealth – with some posing with flashy cars.
Others pose with their muscular pit bulls…’[28]
[28] Ibid, p 80-82.
oThere is a further article in the Daily Mail dating from 4 October 2019 that records the following:
A notorious bikie gang from New Zealand has infiltrated an Australian city and have allegedly attacked innocent members of the public.
Members of the Mongrel Mob as “stretching out” around areas in Queensland such as Brisbane, Logan, Rockhampton and the Gold Coast.
One person in September narrowly avoided being allegedly knifed by a Mongrel Mob outlaw after he was mistaken to be a member of a rival gang, Black Power, in Logan.
The gang allegedly attacked three men at Eagleby Shopping Centre after also being mistaken as members from Black Power, leaving one with broken arms.
Six guns, steroids and Mongrel Mob and Rebels outlaw motorcycle gang clothing were found buried in a Southport backyard and seized by police on Wednesday.
A 25-year-old with links to both bikie gangs was subsequently charged.
…
…gang members were predominantly established in southeast and north Queensland.
…
Patching ceremonies, which initiates new members into the gang, has also been intercepted at Logan property.
“The Mongrel Mob has a dysfunctional leadership within Queensland at the moment,” Detective Lowe told told [sic] the Courier Mail.
The organised street gang formed in New Zealand in 1960s, and has more than thirty chapters throughout the country.
Two members from the Wairoa chapter were slapped with 58 charges of dealing and supplying methamphetamine and cannabis on Friday.’[29]
[29] G1, pp 160-164.
Having regard to the abovementioned (1) Queensland Attorney-General’s press release; (2) police records; and (3) media articles, I am satisfied that the subject ‘…group, organisation or person’ [the Mongrel Mob] ‘has been or is involved in criminal conduct’. I so find.
Can a ‘reasonable suspicion’ be formed that the Applicant was sympathetic towards, or supportive of, the Mongrel Mob’s criminal conduct?
Once again, the weight of the evidence does not assist the Applicant. First, on his own evidence, (or at least, on the basis of what he reported to Dr Yoxall) while he was in New Zealand and prior to his arrival in Australia, he did form an association with members of the New Zealand Mongrel Mob. This was not a cursory or simplistic association. He apparently discussed different aspects of the New Zealand Mongrel Mob’s activities and was told enough to know that they were apparently involved in both criminal and non-criminal activities. He told Dr Yoxall that those New Zealand Mongrel Mob members apparently told him about the activities of the Brisbane chapter of that organisation and that this chapter ‘…was focused on building community and supporting families and supporting young people.’[30] I have no difficulty in finding that this level of involvement with the Mongrel Mob points to a reasonable suspicion that the Applicant being sympathetic or supportive of the organisation.
[30] G1, p 227.
Second, also on his own evidence, the Applicant has confirmed he became a patched member of the Mongrel Mob and that he specifically travelled to Melbourne with other members for the patching ceremony. If he was not sympathetic towards the organisation he would not have agreed to become patched into its membership. The willingness to join the organisation surely points to a reasonable suspicion that the Applicant was sympathetic towards or supportive of the organisation’s criminal conduct.
Third, the Applicant remained a member of the Mongrel Mob even after the Queensland Attorney-General’s press release of 16 July 2018 which I have quoted earlier in these reasons. According to his evidence, he ceased any contact with the Mongrel Mob in December 2018, some six months after the Queensland Attorney-General’s press statement that declared the Mongrel Mob an ‘identified organisation’ pursuant to the Serious and Organised Crime Legislation Amendment Act 2016 (Qld). His continued membership of the organisation does, in my view, support a reasonable suspicion that the Applicant was sympathetic towards, or supportive of, the organisation’s criminal conduct.
Fourth, there is an inherent implausibility in the Applicant’s evidence purporting to suggest that his involvement with the Mongrel Mob was strictly for non-criminal and community-based and benevolent purposes in circumstances where (1) he confirms he was told the organisation was involved in both criminal and non-criminal activities; and (2) where he had an apparently close association with senior-ranking members of the organisation who had known criminal histories. It is an undue stretch of the evidence for the Applicant to suggest there is no basis for a reasonable suspicion that he was sympathetic or supportive of the Mongrel Mob’s criminal conduct. This is especially implausible in circumstances where he was clearly told about it and associated with other members who were involved in perpetrating it.
Fifth, further implausibility can be found in his suggestion that he ‘…started to feel really stressed and conflicted because the group became illegal and was not doing anything about that or doing the things it was supposed to be doing.’[31] This evidence must be rejected because (1) the New Zealand Mongrel Mob members had previously told him about the illegal activities of the organisation; and (2) during the period 28 July 2018 and 22 February 2019 the Applicant and his family resided with a Mongrel Mob member in the downstairs portion of that member’s house. It is not difficult to understand how a reasonable suspicion can now be formed about the Applicant having sympathy towards, and support, of the organisation’s criminal conduct in circumstances where he had previously been told about it and he resided with a member of the organisation for at least half a year.
[31] G1, p 210, para [128]
I am therefore satisfied (and I find) that the evidence demonstrates a reasonable suspicion that:
·the Applicant has been a member of the Mongrel Mob; and
·that organisation has been involved in criminal conduct;
Accordingly, the Applicant does not pass the character test pursuant to s 501(6)(b) of the Act. He cannot rely on s 501(2)(a) or (b) of the Act to vitiate the Tribunal’s discretion not to exercise the power to cancel his visa.
The remaining and determinative issue for this Tribunal thus becomes whether it should not exercise its discretionary power conferred by s 501(2)) of the Act to cancel the visa previously granted to the Applicant.
Is the Tribunal’s discretion pursuant To S501(2) engaged?
In considering whether to exercise the discretion in s501(2) of the Act, the Tribunal is bound in accordance with s499(2A) to comply with any directions made under the Act. In this case, the Direction has application. The Direction (at Part 2, paragraph 6) compels decision-makers to take into account the abovementioned Primary and Other considerations[32] in determining whether the Tribunal’s discretionary power conferred by
[32] See Paragraphs [13] and [14] of these Reasons.
s 501(2) of the Act is enlivened.
The considerations relevant in the context of a cancellation decision comprise the four Primary and four Other Considerations described above.[33] I note and emphasise the importance of these Other Considerations being ‘other’ considerations, as opposed to ‘secondary’ considerations.
[33] See paragraph [12] of these Reasons.
I will now turn to addressing the applicable Primary and Other Considerations to determine whether the Applicant’s discretion pursuant to s 501(2) of the Act is enlivened.
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether to exercise the discretion in s501(2) of the Act, the Tribunal is bound in accordance with s499(2A) to comply with any directions made under the Act. In this case, the Direction has application.[34] The considerations relevant in the context of a cancellation decision comprise the four Primary and four Other Considerations described above.[35] I will now turn to addressing the applicable Primary and Other Considerations to determine whether the Applicant’s discretion pursuant to s 501(2) of the Act is enlivened.
[34] On 15 April 2021, the former applicable direction, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90. Direction 90 is a Ministerial direction made pursuant to s499 of the Act and must be applied by decision makers, including this Tribunal, on and from 15 April 2021.
[35] See paragraph 11 of these Reasons.
Primary Consideration 1 – Protection of The Australian Community
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to
keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by

non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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.
I will consider each in turn.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Paragraph 8.1.1(1)(a)(i)
While the Applicant has a conviction for ‘disorderly behaviour’ in New Zealand in 2009, this conduct does not rise to the level of a violent and/or sexual crime. Similarly, his conviction for mid-range drink driving does not constitute a violent and/or sexual crime. This paragraph is irrelevant.
Paragraph 8.1.1(1)(a)(ii)
None of the Applicant’s offending involves any conviction for a crime of violence against a woman or child. This paragraph is not relevant.
Paragraph 8.1.1(1)(a)(iii)
While the Applicant does not have a recorded conviction for a crime resulting from circumstances of family violence offending, it is important to note that this particular paragraph requires a decision maker to take such conduct into account ‘regardless of whether there is a conviction for an offence or a sentence imposed.’ In the Tender Bundle[36] of documents before the Tribunal there is reference to an incident on 1 January 2017 between the Applicant and his mother. The relevant Queensland Police Service document records the following:
‘The defendant in this matter is Maia Rawira EMERY.
On the 1st day of January 2017 at about 2:25am police from Beenleigh police station were detailed by police communications to attend [address redacted in original] in relation to a drunk male causing a disturbance with family members.
Police arrived a short time later and where [sic] having a conversation with the sister of the defendant at the front of the job address when a disturbance has begun and could be heard coming from the rear yard with an unknown person yelling “get off her”. Police entered the rear yard and observed the defendant involved in a physical altercation with a female who was later identified as the defendants [sic] mother. [name of police officer redacted] directed the defendant to immediately cease the physical altercation with his mother, the defendant did not comply with this direction and police immediately attempted to restrain the defendant to prevent any injury to the defendants [sic] mother. As police attempted to restrain the defendant he continually pulled his hands away from police to avoid being restrained, obstructing [name of police officer redacted] from performing his duties as a police officer. Police continued to struggle with the defendant for a short time until he was eventually restrained.
The defendant was then detained under the Domestic and Family Violence Protection Act 2012 and was transported to the Beenleigh watchouse [sic] where he was later undetained [sic] and arrested in relation to this matter.
Police were unable to interview the defendant in relation to this matter as he was grossly affected by alcohol however when detained under the Domestic and Family Violence Protection Act 2012 he stated he was attempting to walk away to “cool off” when the physical altercation with his mother occurred.
The defendant was later released on a bail undertaking to appear in the Beenleigh Magistrates Court regarding this matter.’[37]
[36] R1.
[37] R1, p 7.
The best responsive evidence on behalf of the Applicant was provided by his mother. During her cross-examination the abovementioned Police Record was read to her. The following then transpired between the Applicant’s mother and the Respondent’s representative:
‘MR BYRNES: Now do you recall that incident on 1 January 2017?
MS TAUKIRI: I recall the incident, that’s not what happened though.
MR BYRNES: That’s not what happened? So what in particular do you take issue in that description?
MS TAUKIRI: Most of it.
MR BYRNES: Okay. So let’s go step by step?
MS TAUKIRI: M’mm.
MR BYRNES: You accept that there was – the police came on 1 January 2017?
MS TAUKIRI: Yes.
MR BYRNES: Okay. And you were there?
MS TAUKIRI: Yes.
MR BYRNES: Okay. And were you – you were sitting on your son. Is that right?
MS TAUKIRI: Yes, yes.
MR BYRNES: Okay?
MS TAUKIRI: So I get – when they probably heard me yell out, “Get off her”, because I thought – because I couldn’t see, I could hear Ellen yell out, “Help me”, and I could see people – two people down the bottom, and I thought he was on her and then I was, like, “Hey, what happened?”. So as I ran down I yelled out, “Get off her”, and I ran down. Then I saw when I got down there – what I saw was that Ellen had actually wrapped her arm and legs around him – her arms and legs around him and she had – she – because a separate – I’ve learned kind of thing, she had wrapped herself around him so he couldn’t move. And then she was just yelling out for help because she couldn’t hold him for much longer. And then she – – -
MR BYRNES: Can you stop there. So your evidence is that your son’s partner was trying to restrain him and he was not wanting to be restrained?
MS TAUKIRI: Yes.
MR BYRNES: He was struggling against that?
MS TAUKIRI: Yes. Yes.
MR BYRNES: Okay?
MS TAUKIRI: And then she was yelling out for help because she was trying to hold him because he was – she said, “He’s running for the river”, and then that’s when I realised because he had been going through depression and suicide feelings beforehand. And she just – yes, she just yelled out a couple of times, “He’s running for the river”, and she’s yelled out for us to help him. So we ran down – I ran down and I tackled him, pinned him, and my husband was straight after me and he pinned him. So we were both on him – – -
MR BYRNES: Was he struggling against you?
MS TAUKIRI: Yes, yes, he was just like, “Get off me”. You know, he wasn’t hitting. He couldn’t. He was face down and we had him pinned. And he was just yelling, “Get off me”, and he was upset and then I don’t know if Ellen was still on the lower part of his legs and then soon after that the police came down and we told them. We just said, “Oh he’s trying – he’s running for the river”, and that and so they, “Here, hop off, we’ll restrain him”. And then I was like, “No, we’ll hop off after you’ve restrained him”. And so they restrained him but he was still trying to turn to tell us to get off him when they were restraining him. So he’s like this and he’s going like this at us to say, “Get off, get off” to us.
MR BYRNES: So what about when – it says, “The defendant did not comply with this direction”?
MS TAUKIRI: Yes. No, I don’t get that because it was us saying that we wouldn’t hop off until he was restrained.
MR BYRNES: Okay. So you don’t agree with that?
MS TAUKIRI: M’mm.’[38]
[38] Transcript, p 72, lines 35-45; p 73, lines 1-43.

While the Applicant’s conduct on 1 January 2017 occurred in a domestic context, I am satisfied that it does not reach a threshold of ‘family violence’ of the type contemplated by 8.1.1(1)(a)(iii) such as to necessarily render that conduct as being ‘very serious’ pursuant to the chapeau appearing in 8.1.1(a) of the Direction. On any reasonable view, the Applicant was reacting towards those seeking to restrain him as opposed to unilaterally imposing violence on others in a domestic setting.
It is also, to my mind, significant that (1) neither the Applicant’s partner (Ms Powell) or his mother (Ms Taukiri) sought any domestic violence order as a result of the incident; and (2) while the relevant police document has a ‘note to prosecutions – DV referral completed’ notation at its foot, no domestic violence order was proferred or made against the Applicant. Further, the Respondent does not propound the application of paragraph 8.1.1(a)(iii) to the incident of 1 January 2017.
I am therefore satisfied that the auspices of paragraph 8.1.1(a)(iii) are not engaged by the circumstances of the subject incident and do not now militate in favour of a finding or characterization that the Applicant’s conduct has been very serious.
Paragraph 8.1.1(1)(b)(i)
There is no evidence before the Tribunal that the Applicant has engaged in conduct causing a person to enter into or become a party to a forced marriage. This paragraph is not relevant.
Paragraph 8.1.1(1)(b)(ii)
The Applicant does have a conviction for ‘Assault or obstruct police officer’ arising from the abovementioned incident on 1 January 2017. As noted earlier, although the Applicant was sentenced, no conviction was recorded, no custodial term was imposed and the conduct was solely punished by the imposition of a fine in the sum of $300. The conduct grounding the charge goes no higher than this:
‘As police attempted to restrain the defendant he continually pulled his hands away from police to avoid being restrained, obstructing [name of police officer redacted] from performing his duties as a police officer. Police continued to struggle with the defendant for a short time until he was eventually restrained.’[39]
[39] R1, p 7.
While the chapeau appearing at paragraph 8.1.1(b) of the Direction seeks to characterize this type of offending as ‘serious’, I am not of the view that it can safely be found to be so. The Applicant’s conduct was obstructive and at no time did he seek to unilaterally inflict violence upon the police. He was very moderately resisting their intervention and at no time did his conduct cause them to adopt a protective or defensive posture. Notably, the Respondent does not propound that this incident engages paragraph 8.1.1(b)(ii) as a basis for finding that the Applicant’s conduct has been ‘serious’.
As a matter of logic, it can be accepted that the Applicant’s conduct on 1 January 2017 falls within the auspices of paragraph 8.1.1(b)(ii). As a matter of rational and reasonable decision-making, it would surely be unsafe to leap to a conclusion that this conduct is militative of a finding that the Applicant’s conduct has been ‘serious’. In any event, I note the chapeau appearing that 8.1.1(b) contemplates a range of conduct ‘that may be considered serious’. I do not think the Applicant’s conduct towards intervening police on 1 January 2017 was serious. I so find.
Paragraph 8.1.1(1)(b)(iii)
The terms of this paragraph refer a decision-maker to ‘any conduct that forms the basis of a finding that non-citizen does not pass an aspect of the character test that is dependent upon the decision maker’s opinion…’. Earlier in these reasons, I made respective findings, based on a properly held reasonable suspicion that (1) the Applicant has been a member of the Mongrel Mob; and (2) that the Mongrel Mob is a group or organisation that has been or is involved in criminal conduct.
In and of themselves, those two findings engage the auspices of this paragraph 8.1.1(1)(b)(iii) such that an attribution of ‘serious’ can be applied to the Applicant’s conduct involving his association with the Mongrel Mob. I so find.
I am therefore satisfied that the auspices of paragraph 8.1.1(b)(iii) are engaged by the circumstances of the subject incident and do now militate in favour of a finding or characterization that the Applicant’s conduct has been serious. It is plain from the evidence that the Applicant did become a ‘patched member’ of the Mongrel Mob and that there is both photographic evidence together with evidence on his person (the ‘13’ tattoo) of his involvement as a member. He also knew of the organisation’s criminal activity because he was told as much by Mongrel Mob members in New Zealand. He was surely aware of the Queensland Attorney-General’s announcement on 26 July 2018 declaring the Mongrel Mob as an ‘identified organisation’ and of the not-insignificant level of media coverage relating to the organisation.
There can be no escaping the reality that paragraph 8.1.1(1)(b)(iii) squarely applies to circumstances of this Applicant in terms of his association with the Mongrel Mob and my reasonably held suspicion leading to respective findings about (1) his membership of it; and (2) its involvement in criminal conduct. This paragraph militates in favour of a finding that the Applicant’s conduct has been of a serious nature.
Paragraph 8.1.1(1)(b)(iv)
This sub-paragraph refers to (and renders, ‘serious’) any crime committed by a non-citizen while in immigration detention. Nothing in the Applicant’s criminal history, either here or in New Zealand, is referable to conduct that occurred during his time in immigration detention, during an escape from immigration detention, or any of the other componentry appearing in the language of this sub-paragraph. This paragraph is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(c)
In applying this particular sub-paragraph, I am precluded from taking into account sentences imposed on this Applicant for:
(1)any violent offending he may have committed against women;[40]
(2)acts of family violence;[41] and
(3)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[42]
[40]    Paragraph 8.1.1(1)(a)(ii).
[41]    Paragraph 8.1.1(1)(a)(iii).
[42]    Paragraph 8.1.1(1)(b)(i).
The Applicant has no convictions for unlawful conduct arising from any of the three offence types referred to in the immediately preceding paragraph. For his singular conviction in New Zealand the Applicant received a fine in the sum of NZ$400. For his criminal offending in Australia, the Applicant received fine of $300 with a ‘no conviction recorded’ notation on his record. This paragraph is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct. To the best of my understanding of the material, the Respondent does not propound anything to the contrary.
Paragraph 8.1.1(1)(d)
This paragraph addresses two specific aspects of a non-citizen’s offending: its frequency and/or whether there is any trend of increasing seriousness. This Applicant has one conviction in New Zealand (in 2009) and one in Australia (in 2017). His offending has not been frequent and due to the very low number of offences he has committed (two in total), it would be unsafe to make any finding about a trend of increasing seriousness.
The next question is whether this paragraph could have any possible application to the Applicant’s traffic history. It runs (in terms of offences/infringements committed) from April 2007 to July 2020. It contains a record of 6 offences. The first four of those offences involved driving whilst unlicenced and three speeding offences. It ‘graduates’ in terms of seriousness to drink-driving with a mid-range blood alcohol limit of 0.140 (in July 2018) followed by purporting to drive a class of vehicle while not holding the necessary driver licence to do so (on 6 July 2020).
Two things can be said about the Applicant’s traffic history. First, I think there is a relative frequency to the traffic offending. We are talking about six offences committed across 10-15 years of driving. But second, and more significantly, I think there is a trend of increasing seriousness in his traffic offending. I reach this conclusion for a couple of reasons. His mid-range drink-driving committed in July 2018 brought another road user into its orbit. These are the circumstances of that conduct:
‘The defendant in this matter is Maia Rawira Charles EMERY
At approximately 4:00pm on the 28th of July 2018, Police were tasked to attend the intersection of Logan Street and Oliver Street, Eagleby in relation to a traffic crash.
On arrival Police observed a two-vehicle traffic crash involving a Suzuki Swift bearing Queensland registration LUP64 and a Subaru Impreza bearing Queensland registration 843LGV. Police took up with the injured female driver of the Suzuki Swift and obtained a version from her. Queensland Ambulance Services assessed the injured driver and stated she had a broken right shoulder. Versions were also obtained from multiple witnesses. Versions obtained from the female driver and witnesses were fairly consistent in that the male driver of the Subaru Impreza was travelling east along Logan Street, Eagleby swerving across the road. The male driver has then turned left onto Oliver street, Eagleby at excessive speed causing him to lose control of the vehicle “t-boning” the Suzuki Swift. The male driver has then exited the vehicle and left the scene, taking refuge at a dwelling located a few houses away from the scene.
At approximately 4:15pm that day Police have taken up with the male driver located at 3 Oliver Street, Eagleby, who identified himself as Maia Rawiri Charles EMERY who is the defendant in this matter. The defendant matched the description of the driver of the Subaru Impreza given by the female driver and witnesses. While talking to the defendant Police observed the defendant to be swaying with bloodshot eyes, mumbling of speech and the distinct smell of liquor on his breath. The defendant underwent a roadside breath test returning a positive result. The defendant was detained and transported to the Beenleigh Police Station for further testing.
At 5:27pm that day upon requirement made and direction given the defendant supplied a specimen of his breath for analysis on an approved breath analysis instrument which was operated by an authorised officer.
At the conclusion of the analysis, a certificate was issued which indicated the defendant to have a concentration of 0.140 grams of alcohol in 210 litres of breath.
The defendant stated that he had consumed 5 alcoholic drinks namely Corona’s earlier that day. The defendant further stated that he was driving home from the Eagleby Tavern prior to the traffic crash.
The defendant could not provide Police with a lawful or emergent reason for his driving.’[43]
[My emphasis]
[43] G1, p 151.
Thus, this drink driving offence resulted in a not insignificant injury being sustained by a member of the Australian community. It also compelled the use of both police and judicial sentencing resources. In addition, it also compelled use of the community’s healthcare resources necessary for the care and treatment of the victim’s injury. As such, the Applicant’s drink-driving conduct is demonstrative of a trend of increasing seriousness compared to the four traffic offences that preceded it.
The additional reason the Applicant’s traffic history demonstrates a trend of increasing seriousness can be found in his pattern of driving or operating a vehicle when not properly licenced to do so. In April 2007 he drove a vehicle while never having held a driver licence to do so. He learnt nothing from that because in July 2020 he purported to drive a particular class of vehicle while not holding the necessary driver licence to do so. Therefore, the ‘trend’ of the seriousness can be found in him refusing to follow the lawful requirements of being properly licenced to drive a vehicle in circumstances where he had previously been penalized for doing so some 13 years earlier.
This paragraph 8.1.1(1)(d) moderately contributes to a finding that the nature and seriousness of the Applicant’s conduct has been of a serious nature.
Paragraph 8.1.1(1)(e)
This paragraph looks for any cumulative effect(s) of the Applicant’s repeated offending. Given the relative paucity of convictions both here and in New Zealand, it is difficult to find any such effect from the circumstances of his convicted offending. At best, the only cumulative effects I can detect from his offending history are to be found in his traffic history. First, the Applicant was fortunate that the injuries sustained by the victim of his drink driving conduct were limited to a non-life-threatening injury in the form of broken shoulder. On any reasonable view, the circumstances of that collision could have resulted in much more significant injury to the victim.
Second, a further cumulative effect of his offending involves his refusal to follow the dictates of lawful authority compelling him to be suitably licenced to operate a motor vehicle and/or a particular class of motor vehicle. However, these two cumulative effects should only be found to only moderately militate in favour of a finding that this Applicant’s offending has been of a serious nature.
Paragraph 8.1.1(1)(f)
This paragraph is concerned with whether a non-citizen has provided false or misleading information to the Minister’s department, including by not disclosing criminal offending. Most commonly, this type of conduct involves an applicant failing to declare criminal offending in Australia or elsewhere in an incoming passenger card when returning to Australia after a period of time abroad.
In the material before the Tribunal, there are five passenger cards. They respectively date from April 2010, February 2011, March 2013, March 2018 and June 2019.[44] In the first of those cards the Applicant ticked the ‘No’ answer next[45] to the question ‘If you are not an Australian citizen, do you have any criminal conviction/s?’ At that time, the Applicant did not have any conviction in Australia and he only had the single conviction in New Zealand dating from November 2009.
[44] G1, pp 96-100.
[45] Ibid, p 96.
In the subsequent four incoming passenger cards, the Applicant ticked the ‘Yes’ response when answering the identically worded question.[46] There is therefore no difficulty for present purposes in relation to those four other incoming passenger cards. While there does not appear to be any explanation for him answering ‘No’ to the relevant question in the first incoming passenger card, one can reasonably expect that the Applicant provided the ‘No’ answer because (1) he did not have any convictions in Australia at that time; and (2) he may not have known that he had take his New Zealand conviction into account when answering that question. It would be unreasonable and unfair to the Applicant to engage the provisions of this paragraph against him on the basis of one out of five incoming passenger cards being incorrectly completed.
[46] Ibid, pp 97-100.
The position is markedly different, however, when one has regard to a certain statutory declaration the Applicant signed in October 2018. The background to this statutory declaration is that on 7 September 2018 the Applicant received a ‘Notice of Intention to Consider Cancellation’ (‘NOICC’) his visa.[47] As he was entitled to do, he engaged legal representation to respond to that NOICC. The response appears in the material.[48] Attached to that response is the abovementioned statutory declaration made by the Applicant on 31 October 2018.[49] During cross-examination, the Applicant was asked about the accuracy of what he said in this statutory declaration. This is what transpired between him and the Respondent’s representative:
[47] Ibid, pp 41-44.
[48] Ibid, pp 106-112.
[49] G1, pp 113-114.
‘MR BYRNES: So, for the period June/July 2018 to December 2018, you were a member of the Mongrel Mob?
APPLICANT: Yes.
MR BYRNES: Okay. Now, can I take you to – you’ve got the G documents there. If you turn to page 113, if you just take a moment to look at this. I am going to take you over to the next page as well. So, this is a statutory declaration.?
APPLICANT: Yes.
MR BYRNES: Turn over to page 114, you’ll see there it’s got a date of 31 October 2018; that’s right?
APPLICANT: Yes.
MR BYRNES: And that’s your signature there?
APPLICANT: Yes.
MR BYRNES: Can you see the – there’s a little declaration above that says “I understand that a person who intentionally makes a false statement in a statutory declaration is guilty of an offence” under a section of an Act “and I believe the statements in this declaration are true in every particular”. Do you see that?
APPLICANT: Yes.
MR BYRNES: So, when you signed this document, you would have read through it and confirmed that everything was true and correct in it at the time?
APPLICANT: Yes.
MR BYRNES: And you realise it’s a very serious thing to swear that something is true and correct?
APPLICANT: Yes.
MR BYRNES: Okay. I’ll take you to – if you turn over to the page before. If you just read paragraph 9, it says, “I confirm that I’m not a member of the Mongrel Mob.” Do you see that?
APPLICANT: Yes.
MR BYRNES: And then at paragraph 15, it says “As per paragraph 10 of this declaration”, I take that should be reference to paragraph 9, “I am not a member of any sort of gang or involved in any organised criminal activity. I have a loose friendship with people who are members of the Mongrel Mob because I use a boxing gym in the home of [name redacted] for the exercise classes I run. You see that?
APPLICANT: Yes.
MR BYRNES: The problem is paragraphs 9 and 15 are incorrect; do you accept that?
APPLICANT: Yes.
MR BYRNES: So, you must have known at the time that what you said in this statement was incorrect?
APPLICANT: Yes.
MR BYRNES: Okay. So, you were willing to make a false statement?
APPLICANT: I wasn’t willing actually. I did talk to the lawyer about that and I told them that I had already came to be a member but he told me that if I didn’t sign it, then I was going to be deported. He told me if I do sign it, just leave, don’t get in trouble again and then you’ll be fine.
MR BYRNES: Your evidence is that you knew it was incorrect and you swore it anyway?
APPLICANT: Yes.
MR BYRNES: Okay. And you accepted that this was going to go to the department on the question of your migration issues at the time?
APPLICANT: Yes.
MR BYRNES: Okay. So, you’re willing to provide a false statement in order to secure a good migration outcome?
APPLICANT: Yes.
MR BYRNES: Okay. And you remember today you swore that you would tell the tribunal the truth. Do you remember that?
APPLICANT: Yes.
MR BYRNES: So, if you’re willing to swear a false statement here, how are we supposed to believe that you’re willing to tell us the truth today?
APPLICANT: ’Cause like I said I didn’t want to sign that, but the lawyer told me I had to sign it otherwise I’d be deported. I wanted to be honest then, but it felt like I had no choice but to either be deported or sign it.
MR BYRNES: So, what’s the difference between today and when you made that statement?
APPLICANT: The difference today is I have nothing to hide.’[50]
[My emphasis]
[50] Transcript, p 15, lines 4-45; p 16, lines 1-20.
As will be noted from the above portion of the transcript, the Applicant knowingly provided false or misleading information in a document that he knew would be submitted on his behalf to the Department of the Respondent. This conduct squarely engages the auspices of paragraph 8.1.1(1)(f) and, as such, strongly militates in favour of a finding that the nature of the Applicant’s conduct in Australia has been serious.
For completeness, I will refer to (and reject) a submission appearing in both the Applicant’s oral evidence in cross-examination and in his re-examination. The essence of the submission is that the legal practitioner who prepared the abovementioned response to the NOICC and, presumably, the attached statutory declaration somehow caused the Applicant to sign a document he knew to be false. This is how I dealt with this issue at the Hearing:
‘MS SAMUTA: Okay. Mr Byrnes took you through to a statutory declaration where you were questioned about a statement that you made, denying that you were or had been a member of the Mongrel Mob; do you remember that?
APPLICANT: Yes.
MS SAMUTA: You mentioned, I guess, words to the effect that you wrote that under the direction of a lawyer?
APPLICANT: Yes. I – I didn’t even actually – I just signed it. So I was given the papers.
SENIOR MEMBER: No, I should tell you, Ms Samuta, I’m not interested in evidence that involves slurs and unfair allegations against legal practitioners where those practitioners don’t have an opportunity to come along and explain their conduct. That kind of unilateral evidence is of little value to me. It’s there, it’s in writing, it’s got the applicant – – –
MS SAMUTA: Sure. I didn’t intend – – –
SENIOR MEMBER: No, I understand, I understand. It’s there, it’s got the applicant’s name on it, it’s before the tribunal as a statement of the applicant and there’s nothing in front of me that displaces that it is his statement.
MS SAMUTA: I understand.
SENIOR MEMBER: Of course, he’s entitled to explain what’s in the statement, and he’s been asked about that and he’s tried to explain it. And I will, of course, listen to that evidence. But I will not listen to evidence, at any time, that a legal practitioner has somehow caused or misled someone into signing something. That’s not on, in my view.
MS SAMUTA: Sure.
SENIOR MEMBER: Unless you call the practitioner. That’s different.
MS SAMUTA: No, I understand, Senior Member. And that wasn’t what I was going for.
SENIOR MEMBER: Okay.’[51]
[51] Transcript, p 44, lines 22-46; p 45, lines 1-11.
Paragraph 8.1.1(1)(g)

This paragraph involves the issue of whether or not an applicant has re-offended since being formally warned about the consequences of further offending in terms of their visa status to remain here. To my mind, the instant facts present two questions to be answered. First, did the Applicant receive any such ‘formal warning’ or was he ‘otherwise made aware’ that the Respondent had detected his sole conviction in Australia and accordingly warned him that any further offending would imperil his visa status to remain here? The material does not contain any formal ‘warning’ per se. The material does contain the abovementioned NOICC.
However, the NOICC constitutes a stated intention by the Respondent to do something – that is, to consider cancellation of the Applicant’s visa pursuant to s 501(2) of the Act. The NOICC is not a ‘warning’ to the Applicant to stop doing something in order to preserve his visa status. The NOICC is prescriptive and deals with the here and now. This is consistent with the nature of the discretionary power in s 501(2) of the Act.
On the other hand, a warning is prospective and is intended to prevent a certain outcome (i.e an adverse outcome for a non-citizen) in the future. The further point is that a warning usually does not oblige a non-citizen to reply or respond. It is most usually a request that they modify their conduct. The NOICC, on the other hand, invites a response from the Applicant and encloses documents for completion by a non-citizen or their representative to facilitate any such response.
Second, the next question is that even if we do accept that the NOICC constitutes a ‘formal warning’, we must ask whether or not the Applicant has re-offended since he received it. His sole conviction in Australia was in April 2017. The NOICC dates from September 2018. Clearly, the Applicant has not reoffended since September 2018. The NOICC refers to the discretion inherent in s 501(2) of the Act to discretionarily cancel a non-citizen’s visa pursuant to the reasonable suspicion able to be reached pursuant to s 501(6)(b) of the Act. The discretionary cancellation of a visa on the basis of a reasonable suspicion is an entirely different thing to the mandatory cancellation of a visa resulting from the imposition of a single head custodial term(s) of 12 months or more.
I am therefore of the view that it would not be safe to find that the NOICC constitutes a ‘formal warning’ or other notification to the Applicant about the consequences of further offending on his visa status. Further, I am satisfied that the Applicant has not re-offended since receipt of the NOICC. In these circumstances, this paragraph 8.1.1(1)(g) should be put to one side and rendered neutral for the purposes of the instant determination.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have sought to apply each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction. With particular reference to the relevant and applicable paragraphs to which I have referred, I conclude that the totality of this Applicant’s unlawful conduct in Australia can be readily characterised as ‘serious’.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect 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.
Paragraph 8.1.2(2) provides that 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;
(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 non-citizen 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; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
A preliminary issue to be resolved concerns the specific harm that could result in the event the Applicant repeated any of his past offences. In Australia those offences boil down to (1) assault/obstruct police; (2) drink-driving; and (3) traffic infringements. While this type of offending is both lamentable and regrettable, the nature of the harm that would be visited upon the community were he to recommit such offences would not necessarily be significant. The incident with the police, if repeated, would be more of an inconvenience to the police as opposed to causing them to be exposed to actual physical harm.
Similarly, as lamentable and undesirable drink-driving may be, there is little or no resulting harm to members of the community where the driving influenced by drinking results only in detection by police but not a collision with another driver or other road user. Here, the Applicant drank, drove and then caused a significant collision which saw the driver of the other vehicle sustain serious injury. Thus, it can be safely accepted that if he were to re-commit such a drink driving offence, there would be a likelihood of another collision and a similar likelihood that another road user(s) could suffer the same (or even worse) harm that befell the driver of the other vehicle.
The pivotal question for present purposes is whether harm would be occasioned upon the community if the Applicant were to re-join the Mongrel Mob. Putting to one side the legality or otherwise of being a ‘patched member’ of an ‘identified organisation’, the pivotal question to my mind is this: if he were to re-attach himself to the Mongrel Mob, but commit no offences, how would that harm the community? In other words, how does membership of an albeit ‘identified organisation’ in such circumstances expose the community to actual harm? Here, the Applicant has admitted to past membership of the Mongrel Mob. But at no time did that membership see him actually convicted of any offence committed for or on behalf of that organisation. In those circumstances, how can mere membership, with no record of committing offences while part of the fabric of the organisation, now be said to expose the community to harm?
The obvious answer is that mere membership with no resulting criminal convictions does not expose the community to harm. Mere membership does, however, expose the Applicant to the possibility of the Respondent Minister forming a view that he does not pass the character test pursuant to a reasonably-held suspicion of that membership which, in turn, exposes the Applicant to the discretionary cancellation of a visa, as has occurred in this case.
There can be no denying that the Australian community would be exposed to a level of harm in the event that the Applicant again purported to operate a motor vehicle under the influence of alcohol. The reality is that drink-driving does result in all-too-often incidents involving motor vehicles or other road users. Such incidents can result in no injury, or a moderate but not life-threatening level of injury (as in the present case) and even fatal outcomes. Were the Applicant to again offend in the realm of disrupting or interfering with police officers going about their business, one could accept that such disruption would again occur if the Applicant recommitted such an offence.
However, having regard to the totality of the Applicant’s offending, I am not satisfied this element of the nature of harm resulting from further unlawful conduct by the Applicant is of such a magnitude as to reach any determinative level for the present matter. Put simply, the Applicant’s offending history tells us he has one conviction for drink-driving; that he has one conviction for resisting police intervention and – his drink-driving conviction to one side – an otherwise relatively unremarkable traffic history.
Likelihood of engaging in further criminal or other serious conduct
The Respondent’s position
The Respondent contends that the Applicant’s level of recidivist risk should be predicated on the extent to which it could not be thought (or found) that he might re-affiliate with the Mongrel Mob. I think this contention is probably correct because the Applicant’s criminal history is not one of petulant re-commission of offences involving him repeatedly (1) committing an offence; (2) being sentenced for that offence; and (3) returning to the community and re-committing the same, similar, or other offences. Therefore, the seminal question about the Applicant’s recidivist risk is analogous to his risk of re-associating with the Mongrel Mob.
There are factors arising from the evidence that, to an extent, speak against this Tribunal accepting the Applicant’s evidence of a low possibility of his return to the Mongrel Mob:
·the Applicant claims to have cut his ties with the Mongrel Mob and of not having any intention of returning to that group. The difficulty with that contention is two-fold: there seems to be a lack of credibility around the evidence involving the Applicant’s past membership of the Mongrel Mob both here and in New Zealand. Further, one should cautiously receive the Applicant’s claim that his primary motivation behind joining the Mongrel Mob was to be a proponent of its claimed community-based and entirely legitimate activities;
·it is plain from the evidence that the Applicant resided in very close proximity to the President of the Mongrel Mob relatively recently. Further to that, the evidence is clear that the Applicant also resided at a Mongrel Mob clubhouse from 28 July 2018 to 22 February 2019;
·therefore, whether or not one accepts the Applicant’s story about an involvement with the Mongrel Mob on strictly legitimate and community-based terms, the Applicant cannot escape the reality that he lived in extremely close proximity to other elements of the organisation that very well may have not had a pre-disposition towards legitimate and community-based activities.
Dr Yoxall’s report
These factors, however, derive from the Applicant’s past. As mentioned, the pivotal question for present purposes in terms of recidivist risk is whether or not it is likely the Applicant would return or re-associate himself with the Mongrel Mob if returned to the Australian community. The Tribunal is assisted by an expert report prepared by the forensic psychologist, Dr Jacqui Yoxall.[52] Dr Yoxall was engaged by the Applicant’s legal representatives in the early part of 2020 for the purposes of preparing a report about the Applicant’s level of recidivist risk.
[52] See G1, pp 218-246. Note: Dr Yoxall signs her report as a ‘Psychologist & Associate Professor in Allied Health’.
It is important to note that Dr Yoxall’s report (dated 27 February 2020) is predicated on her responding to questions about the Applicant’s level of recidivist risk limited to his risk of re-committing offences that appear in his criminal history. Dr Yoxall’s report does not directly address the question of the extent of any risk related to the Applicant re-joining the Mongrel Mob. This exclusive basis of the predication of her report is to be found in the specific questions posed to her by the Applicant’s representatives and in her responses to those questions.
First, Dr Yoxall is asked to comment on: ‘1. The risk of Mr Emery’s risk of reoffending if he were allowed to remain in Australia.’[53] Dr Yoxall opined that ‘In consideration of all available information, including a validated measure of static and dynamic risk factors and rehabilitation needs, it is my view that Mr Emery’s risk of reoffending, if he were allowed to remain in Australia is low.’[54] Importantly, Dr Yoxall refers to the Applicant’s risk of re-committing whatever offences he was convicted for. There is no mention of any level of risk around the Applicant re-joining the Mongrel Mob.
[53] G1, p 237.
[54] Ibid, p 237.
Second, Dr Yoxall’s opinion was sought on the following ‘Notwithstanding the risk of Mr Emery’s reoffending, the likely nature and seriousness of any further offending Mr Emery engages in.’[55] Dr Yoxall discussed ‘significant dynamic risk factors’ predispositive to the Applicant abusing alcohol and thus becoming liable to further offend. She thought that if the Applicant could abstain from abusing alcohol ‘…his risk of re-offending will remain low.’[56] Importantly, Dr Yoxall makes particular reference to the fact that the Applicant has not committed any offences resulting from any negative peer group influences. She opined that:
‘The protective factors in place include his relationship with his wife and his role as a father. It is interesting to note, that although Mr Emery appears to have initially exercised poor judgment in forming an association with members of the Mongrel Mob and then joining the group, he has no history of offending arising from negative social influence of others.’[57]
[55] Ibid.
[56] Ibid.
[57] G1, p 237.
Further, Dr Yoxall specifically looked at information before her that sought to explain why the Applicant originally became involved with the Mongrel Mob. Importantly, Dr Yoxall did not provide an opinion about the Applicant’s prospects of re-joining that organisation:
‘Information available indicates that his motivation to become involved in the Mongrel Mob was more likely that of seeking out friendship, comradery and a sense of belonging. Once he came to realise the behaviour of some members, and after the group was determined to be an outlaw group (in July 2018) he disassociated himself from the group and relinquished his membership.’[58]
[58] Ibid, pp 237-238.
Third, Dr Yoxall was asked for ‘3. Any recommendations that might mitigate the risk of Mr Emery reoffending.’[59] None of her recommendations related to the Applicant’s risk or prospects of re-joining the Mongrel Mob. Her recommendations were expressed thus:
·the Applicant would substantially benefit from psychological intervention to (1) address and resolve his vulnerability to alcohol misuse; and (2) as a means of his diagnosed Adjustment Disorder with Mixed Anxiety and Depressed Mood;
·treatment for ‘…these ongoing difficulties will substantially improve [the Applicant’s] mental health and quality of life and reduce his risk of re-offending’[60].
The Applicant’s position
[59] Ibid, p 238.
[60] Ibid.
The contrarian position around the Applicant’s involvement with the Mongrel Mob is put on behalf of the Applicant. That contention is expressed thus:
‘Of utmost relevance is the context around the Applicant’s relevant conduct in relation to Mongrel Mob. This is a context of friendship alone and of a desire to solely deal with Mongrel Mob members on an understanding that and in relation to community and fitness and other positive engagements with wider society. Similarly, upon becoming aware of other elements and realisation of no foreseeable change, the Applicant disassociated with the group at risk to himself.’[61]
[61] A1, p 10, para [47].
The Tribunal is urged towards an understanding of the reasons for the Applicant’s membership and subsequent discontinuance of membership of the Mongrel Mob. That understanding is said to be found in the following part of Dr Yoxall’s report:
‘In regards to Mr Emery’s association with the Mongrel Mob he said that he met [name redacted] several years ago when they completed an excavation course together. He said that he used to be a friend, but is no longer a friend. He said through [name redacted], he met various other people who were members of the NZ Mongrel Mob. He said that when he met them, Mongrel Mob members told him that they were separate to other aspects of the Mongrel Mob in NZ who were involved in crime. He said he was told that the Brisbane Chapter was focused on building community and supporting families and supporting young people. He said that they said they were anti-drugs and anti-weapons. He said that he believed them. He said that their common area of interest was fitness training and boxing and martial arts. He said that he has been involved in martial arts since he was about 22 and for a period of time he competed in MMA.
Thus, Mr Emery acknowledged that he did associate with them for a period of time. He said that he thought that they were friends. He said that whilst he didn’t live at the clubhouse he spent a lot of time there, engaging in training. He said that he enjoyed working with them. He said that from what he saw, the members were all engaged in community activities, but were also family men as well. He said that when he first became associated with them the Mongrel Gang had not been outlawed in Australia. He said he has always been committed to his wife and he said that he has never wanted to be part of a gang. He said he did however, enjoy the sense of belonging that he derived from his friendships with the gang members.
Mr Emery said that he became a member of the Mongrel Mob in 2018. Mr Emery said that gang member activities seemed to change over time. He said that members of the club started to become involved in illegal activities that he wasn’t interested in being involved in. He said that he was pushed to outside. He said that his drinking increased during that time because he felt so stressed and conflicted. He said that he tried to salvage some friendships but this was not successful. Then in July 2018 the Mongrel Mob was outlawed under Queensland laws regarding organized criminal groups. He said that he withdrew his membership soon thereafter in December 2018. Mr Emery said that he has had various threats but he doesn’t believe that the Mongrel Mob members would follow through on these threats.’[62]
The oral evidence of Dr Yoxall
[62] G1, pp 227-228.
During her evidence in chief, Dr Yoxall’s opinion was sought about the Applicant’s personal decision making that led him to join the Mongrel Mob. This is what transpired between her and the Applicant’s representative:
‘MS SAMUTA: I want your opinion around Mr Emery’s personal decision-making that ultimately led to his membership with the Mongrel Mob?
DR YOXALL: I think the decision-making was maladaptive. I think it was – it showed very poor judgment. But if it’s considered in the context of where he came from, this is a person who has always known that his actual existence in this world is because of a violent crime perpetrated against his mother, and that his mother didn’t have a choice in the consequences of that. He has a fundamental – has had a fundamental sense of not belonging, of being separate from those which he feels closest to throughout his key developmental years, and that’s a profound experience for any child to live through. My opinion of his decision to become involved in the Mongrel Mob, he describes his association with some members in not-too-different a way to I’ve heard other people describe the initial attraction, albeit, he was probably a bit older than most people, in that he viewed it as a form of social connection, a form of belonging. He had a lot of problems growing up, by his account, of connecting with people and having friendships and forming friendships, partly because of his parents’ transience. So you’ve got a child who forms into an adult, who essentially has never felt like he fitted, probably apart from his wife’s family and his wife. And then becomes a father himself, so in turn, creating a family he never had, but still with that sense of not belonging. And that’s essentially what these organisations provide.
…
DR YOXALL: But commonly, that is who they attract, and so from that point of view, he was also, I understand, told that the branch that he was associating with in Eagleby was different from the one in New Zealand. He comes from a family that’s quite clear that they’re anti-gang-violence, and he saw gang violence as a child. So all those components together, I think he exercised poor judgment. He exercised – it was a maladaptive decision, but from a psychological sense – it makes sense from a psychological standpoint – from a behavioural point of view. I think probably most clear is that he did try and seek out his wife’s viewpoint. His wife didn’t necessarily agree with it, but he was convinced that it was something better. It was more about community, more about families, more about supporting his community. When he found out with no question that it was an outlaw motorcycle club, within months – I can’t say the time, but I know that in 2018, it was declared, and 2016, he removed himself which I also understand is no small feat for anyone to remove themselves and takes a lot of courage and careful management of behaviour, and I understand that in the – you know, the three plus years that have occurred since then, he has not had associations with that group and, in fact, has had some negative experiences where he and his family have felt threatened. So, in my opinion, he’s reformed his – the errors or he’s changed his thinking in that regard.’[63]
[63] Transcript, p 80, lines 6-28; lines 46-47; p 81, lines 1-20.

In her written statement, the Applicant’s mother speaks of the difficulties that would confront both her and the broader family in the event of the Applicant’s removal:
‘…It would just be really hard to fathom the fact that not only is he going back to New Zealand, he would never be able to come back to Australia. There are so many of us here that we couldn’t all go to New Zealand at the one time to be with him, and that would mean we will never be whole again. We have always been eachothers’ [sic] support system, not just in the bad times but also the good times. We are eachothers’ [sic] best friends, especially his siblings along with their children.’[138]
[138] Ibid, p 14, para 35.
This written evidence had its echo in the mother’s oral evidence:
‘MS SAMUTA: And if Maia is unsuccessful in this appeal he’ll have to go back to New Zealand. How will that impact you?
MS TAUKIRI: Obviously it’ll be heartbreaking, you know, for myself. More for him. It’ll be heartbreaking for me to see him and his family have to be uprooted. I’ve seen him try so hard throughout his life and just do – try and do things the right way. You know, try to be honest, try to do things the right way. And he’s struggled. He’s – you know, he’s worked hard, he’s been knocked down. He’s working hard and he’s – but he just keeps trying. And he – when he came over the last time he let us know – he goes, “Mum, if we come back, we’re settling there.” He goes, “We’re not going back to New Zealand,” because he didn’t want to uproot his kids. And I know – I’ve seen him and Ellen try so hard. His son is an apprentice chef, his boys are into the sports here, his daughter’s into everything going at school. And it would just be really, really unsettling and heartbreaking for them to have to uproot and go home. And that would be heartbreaking for myself. Apart from that, our family is just a real tight unit. I mean, we don’t live in each other’s pockets all the time, but we’re always there for each other no matter what. Even if we’re not – you know, even if we’re having a disagreement, we’re here for each other.’[139]
[139] Transcript, p 66, lines 9-26.
Having regard to (primarily) the evidence of the Applicant’s mother, I am safely led to the view (and finding) that the strength, nature and duration of the Applicant’s ties to his immediate family members in Australia carries a moderate level of weight in favour of this Tribunal not exercising its discretion to cancel the Applicant’s visa. I make this finding conditional on the presumption that each of the above-listed immediate family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. There is some difficulty around this conditionality. That is because in his PCF the Applicant records that each of the above-listed immediate family members have a nationality of ‘NZ’ which I presume to be ‘New Zealand’. For the purposes of these Reasons, I will presume these immediate family members have a right to reside in Australia indefinitely.
ii. Strength, nature, and duration of “other ties” – length of residence
There are two necessary enquiries referable to the extent of the Applicant’s, “other ties” to Australia. The first of those involves the question of how long he has resided in Australia, including whether he came here as a young child. As mentioned earlier, the Applicant migrated to Australia with his family on a more or less permanent basis in 2013. He spent about 20 days in New Zealand in 2017 and 2018. Since 2013, it can be safely found that he has spent the overwhelming period of his life in Australia.
I will now make reference to the two tempering sub-elements in paragraph 9.4.1(2)(a) of the Direction. The first of those compels me to allocate less weight if the Applicant began offending soon after arriving here. He arrived and settled in Australia, with his family, in 2013. His first (and only) conviction in an Australian court occurred in April 2017 – some four years after his arrival. He arrived here in his mid-twenties and committed his sole offence when he was about 30 years old. A period of four years post-arrival should not be construed as being “soon after arriving in Australia”. The first of these two tempering sub-elements should be put to one side and rendered neutral.
The second of the two tempering sub-elements at 9.4.1(2)(a) of the Direction compels an assessment of the extent of the Applicant’s positive contributions to the Australian community. As I have mentioned earlier, in his PCF the Applicant refers to him working as a casual labourer in Australia during the period August 2017 to December 2017 and as a casually employed security officer during the period April 2013 to November 2014. He will presumably have paid taxation on the income he derived from that employment and would thus have made a contribution towards this country’s coffers from which the Australian community is sustained.
In his oral evidence the Applicant spoke about community-based voluntary activities. I approach this evidence with caution because it seems whatever community activities has participated in occurred at the time of his involvement with the Mongrel Mob:
‘MR BYRNES: In terms of the community activities of the Mongrel Mob, I think before you referred to a fundraiser. But the only fundraiser seemed to be the one that was to help you in your visa fight. Is that the only one you can think of?
THE APPLICANT: Yes, I don’t know.
MR BYRNES: So that’s the extent of the community fundraising?
THE APPLICANT: Yes, I guess so.
MR BYRNES: So you see that doesn’t really help the community, does it? That’s to help you?
THE APPLICANT: Okay, yes.
MR BYRNES: Sorry, you just have to speak for the microphone?
THE APPLICANT: Yes.
MR BYRNES: And it seems like the extent of the other community activities you thought that the Mongrel Mob was involved in concerned fitness training. Is that about it?
THE APPLICANT: Yes.
MR BYRNES: I don’t want to unfairly limit it. What other specific community goals did they tell you about?
THE APPLICANT: So, like, we were supposed to be helping out Eagleby in specific. But that’s what I was talking about; they weren’t living it up to it. Like, you know, because I brought to the table, like, to everyone, “Let’s – why don’t we go out and, like, just go pick up rubbish around Eagleby because, you know, I walk through Eagleby and then there’s just rubbish through the parks and stuff like that. And even if we do it once a month.” And they would all agree that it’s a good idea, but then nothing would ever come of it.
MR BYRNES: So we’ve got so far – we’ve got pick up rubbish. What else is there in Eagleby?
APPLICANT: Other than training camps, boot camps and stuff like that, that’s all I could ever really come up with.’[140]
[140] Transcript, p 19, lines 28-47; p 20, lines 1-9.
While there is mention of community-based activity, a certain part of it involved the Applicant raising funds to contest the cancellation of his visa. Another significant part of it is claimed community work done via his past membership in the Mongrel Mob. This second tempering sub-element can thus be marginally applied in favour of the Applicant due to his positive contributions to the Australian community via his engagement in remunerative employment and his (albeit questionable) motivations behind his community-based activities. Therefore, while the first tempering sub-element can be found to be neutral, the second one can be applied in the Applicant’s favour to attract weight to this Other Consideration (d) in favour of this Tribunal not exercising its discretion to cancel his visa.
iii. Strength, nature, and duration of “other ties” – family and other social links
In his PCF, the Applicant recorded the following extended family members residing in Australia[141]:
·Aunty – Catya Emery;
·Cousin – Jayda Emery-Crawford;
·Cousin – Kyah Emery-Crawford;
·Cousin – Levi Timoti;
·Niece – Alizay.
[141] G1, p 145; For the purposes of these Reasons, I will presume that this niece is over the age of 18 years; .
The Applicant made a relatively vague reference to these extended family members in his oral evidence. He was forthright enough to make it clear that he does not have too much to do with them:
‘MS SAMUTA: And do you have any other nieces or nephews?
THE APPLICANT: Yes. I have – let me count for a second. Just four. Just four other ones. Two nephews and two nieces.
MS SAMUTA: Yes, and how will they be impacted by the cancellation of your visa?
THE APPLICANT: Sorry, five, six. I forgot my brother’s. Other than they just won’t get to know me and their cousins. I can’t really state too much because I haven’t had a lot to do with their upbringing.’[142]
[142] Transcript, p 12, lines 13-19.
To the extent any finding can be made about weight allocable to these extended family members, any such finding must be conditional upon the presumption that each of these above-listed extended family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. Once again, there is some difficulty around this conditionality. That is because in his PCF the Applicant records that each of the above-listed immediate family members have a nationality of ‘NZ’ which I presume to be ‘New Zealand’. For the purposes of these Reasons, I will presume these immediate family members have a right to reside in Australia indefinitely.
There is some evidence in the material of the Applicant having ‘other ties’ in Australia beyond immediate and extended family. There are the following statements or references in the material:
·Ms Bianca English Clark is a former neighbour of the Applicant. Her undated character reference appears in the material.[143] She first met the Applicant in April 2018 she says the Applicant is ‘…one of the most generous and caring person who always puts others before himself…’.[144] She speaks of the Applicant assisting her brother and that he otherwise is a ‘…well balanced family orientated family man and will no doubt still have the positive impact for the community.’[145] Ms Clark did not give oral evidence at the Hearing and her evidence was thus not tested in cross-examination;
·Mr Pepe Nahu-Roberts is a Head Trainer in the discipline of Māori martial arts. His character reference dated 8 October 2018 appears in the material.[146] He met the Applicant through this activity. He has found the Applicant to be ‘…very engaging, helpful and very pleasant to deal with. A very good individual indeed. We were very lucky that [the Applicant] shared his time with us when he was free.’[147] Mr Pepe Nahu-Roberts did not give oral evidence at the Hearing and his evidence was thus not tested in cross-examination;
·Mr Tu Thompson Tawha is the chairman of the Queensland Māori Society Inc. His character reference dated 8 October 2018 appears in the material.[148] Mr Tawha has known the Applicant and his family for over seven years and says that ‘…in that time I have seen the respect that he shows to his elders and his peers.[149]’ Mr Tawha has found the Applicant to be ‘…very placid… that he has been doing out in the community supporting youth at risk.’[150] He regards the Applicant as a ‘…great asset…’[151] for both the Māori and boarder community. Mr Tu Thompson Tawha did not give oral evidence at the Hearing and his evidence was thus not tested in cross-examination;
·Mr Joel Tuita has known the Applicant on a personal and professional level for the past five years. His written character reference dated 12 October 2018 appears in the material.[152] He met the Applicant while the Applicant was doing his work in the security industry. He says that ‘On a personal level I have not seen [the Applicant] conduct [sic], or show any negative behaviour towards myself or people around. He has always been soft spoken, kind, with a friendly nature.’[153] Mr Joel Tuita did not give oral evidence at the Hearing and his evidence was thus not tested in cross-examination;
·Ms Tamzyn Carroll is an MST clinician with the organisation known as Life Without Barriers. She has provided a character reference which is dated 30 October 2018.[154] She regards the Applicant has having a positive influence on his immediate family members, in particular, with regard to his brother (Waka) who has had difficulties with the law. Ms Carroll says the Applicant ‘…is an approved adult as per Waka’s bail conditions, meaning he is able to supervise him past curfew times – providing a valuable break/support for his mother.’[155] Ms Tamzyn Carroll did not give oral evidence at the Hearing and her evidence was thus not tested in cross-examination;
·The abovementioned Mr Tu Thompson Tawha provided a further statement which appears in the material and is dated 15 November 2019.[156] The primary configuration of this reference is to provide evidence around the Applicant’s past association with the Mongrel Mob and does not have much to say about how Mr Tu Thompson Tawha would be affected in the event of the Applicant’s removal to New Zealand.
[143] G1, pp 125-126.
[144] Ibid, p 125.
[145] Ibid, p 126.
[146] G1, p 127.
[147] Ibid.
[148] Ibid, p 128.
[149] Ibid.
[150] Ibid.
[151] Ibid.
[152] Ibid, p 129.
[153] Ibid.
[154] G1, p 130.
[155] Ibid, p 130.
[156] Ibid, pp 131-132.
Having regard to the extent of the evidence around the Applicant’s ‘other ties’ to (1) extended family members; and (2) social links, I am of the view (and I find) that the strength, nature and duration of the Applicant’s ties to these extended family members and social links carries a moderate level of weight in favour of this Tribunal not exercising its discretion to cancel the Applicant’s visa.
This finding must be conditional upon the presumption that each of these above-dot-pointed social links are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. Once again, there is some difficulty around this conditionality. That is because in none of these references is it said that any of these people are Australian citizens or permanent residents of Australia. For the purposes of these Reasons, I will presume these social-links have a right to reside in Australia indefinitely.
(2) Impact on Australian business interests
Paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on, “Australian business interests”. I am of the view (and I find) that this component of Other Consideration (d) is not relevant.
Weight allocable to Other Consideration (d): links to the Australian community
With reference to the first part of this Other Consideration (d) (the strength, nature and duration of the Applicant’s ties to Australia), I am of the view – after having analysed its three above referred elements – that the totality of the evidence points to the allocation of a moderate, but not determinative, level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant. Overall, the Applicant’s links to the Australian community carry a moderate, but not determinative, level of weight in favour of a finding that this Tribunal should not exercise its discretion to cancel his visa.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)extent of impediments if removed: is of a moderate, but not determinative, level of weight in favour of this Tribunal not exercising its discretion to cancel the Applicant’s visa;
(c)impact on victims: is of a moderate, but not determinative, level of weight in favour of this Tribunal not exercising its discretion to cancel the Applicant’s visa; and
(d)links to the Australian community including the strength, nature, and duration of ties to Australia: is of a moderate, but not determinative, level of weight in favour of this Tribunal not exercising its discretion to cancel the Applicant’s visa.
Conclusion
Section 501(2) of the Act provides that, a decision to cancel the Applicant’s visa can be exercised where this Tribunal is satisfied that the Applicant does not pass the Character Test. As I have noted and found above, the Applicant does not pass the character test. The exercise of s501(2) is discretionary and the Tribunal therefore must have regard to the considerations referred to in the Direction.
With regard to the weight I have allocated to each of these Primary and Other Considerations within the Directions, I find as follows:
(a)Primary Consideration 1: carries a moderate, but not determinative, level of weight in favour of this Tribunal exercising its discretion to cancel the Applicant’s visa;
(b)Primary Consideration 2: carries a slight, but not determinative, level of weight in favour of this Tribunal exercising its discretion to cancel the Applicant’s visa;
(c)Primary Consideration 3: carries a very heavy level of weight in favour of this Tribunal not exercising its discretion to cancel the Applicant’s visa; and
(d)Primary Consideration 4: carries a moderate, but not determinative, level of weight in favour of this Tribunal exercising its discretion to cancel the Applicant’s visa;
(e)I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to Primary Consideration 3 and Other Considerations (b), (c) and (d) respectively, are sufficient to outweigh the combined weights I have allocated to Primary Considerations 1, 2 and 4, respectively; and
(f)A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal should not its discretion to cancel the Applicant’s visa.
Consequently, I do not exercise the power conferred by section 501(2) of the Act to cancel the Applicant’s visa.
Decision
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside and substitutes the decision made by the delegate of the Respondent dated 31 March 2022 to cancel the Applicant’s visa with a decision that the Tribunal does not exercise the discretion conferred by section 501(2) of the Migration Act 1958 (Cth).

I certify that the preceding 229 (two hundred and twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

..................................[SGD]..................................
Associate
Dated: 12 January 2023

Date(s) of hearing: 5 and 6 December 2022

Solicitor for the Applicant: Ms Jennifer Samuta (Director/Principal Solicitor)

Solicitors for the Applicant: Samuta McComber Lawyers

Counsel for the Respondent: Mr J D Byrnes

Solicitors for the Respondent: Sparke Helmore Lawyers
Annexure A

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1 Section 501 G-Documents
(G1-G55, paged 1-286) R Various 21 Oct 2022

R1 Respondent Tender Bundle
(R1-R2, paged 1-9) R Various 30 Nov 2022

R2 Respondent’s Statement of Facts, Issues and Contentions
(Paged 1-13) R 23 Nov 2022 23 Nov 2022

A1 Applicant’s Statement of Facts, Issues and Contentions
(Paged 1-17) A 11 Nov 2022 14 Nov 2022

A2 Supplementary Statement of Maia Rawiri Charles Emery
(Paged 1-6) A 14 Nov 2022 14 Nov 2022

A3 Applicant Tender Bundle
(1-5, paged ME1-ME18) A Various 30 Nov 2022

A4 Letter of Nathan Ross A 30 Nov 2022 30 Nov 2022

[2023] AATA 16

3 January 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Date(s) of hearing:	5 and 6 December 2022
Solicitor for the Applicant:	Ms Jennifer Samuta (Director/Principal Solicitor)
Solicitors for the Applicant:	Samuta McComber Lawyers
Counsel for the Respondent:	Mr J D Byrnes
Solicitors for the Respondent:	Sparke Helmore Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1-G55, paged 1-286)	R	Various	21 Oct 2022
R1	Respondent Tender Bundle (R1-R2, paged 1-9)	R	Various	30 Nov 2022
R2	Respondent’s Statement of Facts, Issues and Contentions (Paged 1-13)	R	23 Nov 2022	23 Nov 2022
A1	Applicant’s Statement of Facts, Issues and Contentions (Paged 1-17)	A	11 Nov 2022	14 Nov 2022
A2	Supplementary Statement of Maia Rawiri Charles Emery (Paged 1-6)	A	14 Nov 2022	14 Nov 2022
A3	Applicant Tender Bundle (1-5, paged ME1-ME18)	A	Various	30 Nov 2022
A4	Letter of Nathan Ross	A	30 Nov 2022	30 Nov 2022