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

[2022] AATA 1781

Falaniko and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1781 (1 June 2022)

Division:GENERAL DIVISION

File Number(s):      2022/2044

Re:Peter Anthony Falaniko

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member George

Date:1 June 2022

Date of written reasons:        22 June 2022

Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 9 March 2022 to not revoke the cancellation of the Applicant’s visa.

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

Senior Member George

CATCHWORDS

MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – consideration of Ministerial Direction No. 90 – domestic violence – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) s 43

Migration Act 1958 (Cth) ss 499, 500, 501, 501CA

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

BJT21 v Minister for Home Affairs (No 2) [2022] FCA 24

FYBR v Minister for Home Affairs [2019] FCA 500

FYBR v Minister for Home Affairs [2019] FCAFC 185

HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202

Minister for Home Affairs v Buadromo [2018] FCAFC 151

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

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

SECONDARY MATERIALS

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

WRITTEN REASONS FOR DECISION

Senior Member George

22 June 2022

INTRODUCTION AND BACKGROUND

1. Mr Falaniko (“the Applicant”) is a New Zealand citizen who was born in Samoa and, as at the date of decision, is aged 29 years.[1] He arrived in Australian in 1998, aged five years, and has substantially remained in Australia since.[2] As a citizen of New Zealand, the Applicant was a holder of a Class TY Subclass 444 Special Category (Temporary) visa until 15 January 2021.[3]

   [1] Exhibit R2, s 501 G-Documents, G4, page 198.

   [2] Exhibit R2, s 501 G-Documents, G4, pages 214-215.

   [3] Exhibit R2, s 501 G-Documents, G3, page 7.

2. In a notice delivered by hand on 18 January 2021,[4] a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”).[5] On 22 January 2021, the Applicant made written submissions to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[6] On 9 March 2022 the Respondent decided to not revoke the cancellation under s 501CA(4) of the Act.[7]

   [4] Exhibit R2, s 501 G-Documents, G4, page 222.

   [5] Exhibit R2, s 501 G-Documents, G4, pages 216-221.

   [6] Exhibit R2, s 501 G-Documents, G4, pages 193-194.

   [7] Exhibit R2, s 501 G-Documents, G2, page 6.

3. On 14 March 2022, the Applicant lodged an application for review of the 9 March 2022 decision in this Tribunal.[8] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.

   [8] Exhibit R2, s 501 G-Documents, G1, pages 1-5.

4. The matter was initially listed for hearing on 12 and 13 May 2022. An adjournment application was heard on 4 May 2022 and was refused. The Applicant’s legal representation subsequently withdrew.

5. Exhibits A8 and A9 were received on 10 May 2022. This fell within two business days of the commencement of the hearing on 12 May 2022. Further, there was no statement from the Applicant’s sister Ms SV. The hearing was adjourned to 19 and 20 May 2022, which allowed for the statement of Ms SV to be filed.[9]

   [9] Exhibit A10.

6. The hearing proceeded on 19 and 20 May 2022 by audio-visual means. The Applicant was self-represented and was supported by his sister Ms SV during proceedings. The Respondent was represented by Mr Hutton of the Australian Government Solicitor.

7. The Applicant gave oral evidence at the hearing, as did his sister Ms SV, aunt Ms MS,[10] brother-in-law Mr JV,[11] great-aunt Ms TFL,[12] and a family friend Mr WFA.[13] The Tribunal accepts Mr WFA’s evidence that the Reverend ST was unable to give oral evidence due to work commitments.[14]

   [10] Undated character reference of Ms MS filed on 9 May 2022 - Exhibit A3.

   [11] Character Reference of Mr JV dated 6 May 2022 – Exhibit A4.

   [12] Character Reference of Ms TFL dated 9 May 2022 – Exhibit A9.

   [13] Character Reference of Mr WFA dated 6 May 2022 – Exhibit A5.

   [14] Character Reference of Reverend ST dated 5 May 2022 – Exhibit A6.

8. The Tribunal received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.

   LEGISLATIVE FRAMEWORK

9. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that the Minister may revoke the original decision under s 501(3A) if:

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

   (b) the Minister is satisfied:

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

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

10. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Accordingly, the issue in this matter is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised if either of s 501CA(4)(b)(i) or s 501CA(4)(b)(ii) of the Act are met.[15]

    [15] Minister for Home Affairs v Buadromo [2018] FCAFC 151.

    Does the Applicant Pass the Character Test?

11. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in ss 501(7)(c) and (d), which provide that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c)) or if they have “been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more” (s 501(7)(d)).

12. On 23 December 2020, the Applicant was convicted of three offences in the Local Court at Mt Druitt and sentenced to an aggregate of 13 months imprisonment, which was reduced to nine months in the District Court at Parramatta on 8 February 2021.[16] The validity of the mandatory cancelation decision is not affected by the reduction of sentence.[17] Further, on 3 September 2020 the Applicant was convicted of one offence and sentenced to a period of three months’ imprisonment. The combined sentences imposed on 8 February 2021 and 3 September 2020 total 12 months.

    [16] Exhibit R2, s 501 G-Documents, G4, pages 22-23.

    [17] BJT21 v Minister for Home Affairs (No 2) [2022] FCA 24.

13. The operational effect of ss 501(6)(a), 501(7)(c) and 501(7)(d) is such that the Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. The Applicant cannot rely upon s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

    Is there another reason why the cancellation of the Applicant’s visa should be revoked?

14. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[18]

    [18] 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.

15. For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 of the Direction where relevant to the decision.

16. The principles that are found in paragraph 5.2 of the Direction may be briefly stated 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. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a 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.

17. Paragraph 6 of the Direction provides that:

    Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

18. Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they 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; and

    (4)expectations of the Australian community.

19. Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:

    a)international non-refoulement obligations;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)links to the Australian community, including:

    i)strength, nature and duration of ties to Australia; and

    ii)impact on Australian business interests.

20. Paragraph 7(2) of the Direction provides that the primary considerations should generally be given more weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.

    BACKGROUND AND OFFENDING

21. In his statement,[19] the Applicant gave evidence that he migrated to Australia in 1996 and attended primary and secondary school. In his oral evidence, the Applicant expanded on his schooling experience. He was a victim of bullying from the age of 10.[20] This was corroborated by the Applicant’s great-aunt Ms TFL, a former police officer of Samoa and former New South Wales police liaison officer,[21] who said:

    [The Applicant] was one of the nicest boys growing up. Very gentle. I think he was every mother’s boy. And then around intermediate – you know, early teen years, that’s when I believe and I was told he that he got bullied and was teased as being a sissy, being a pussy and to man up, to be a man. And then in the society (indistinct) how do you show being a man? Like, if you’re hanging out with these people who see a man as being rough and rude and cruel, what do you expect?[22]

    [19] Undated statement of the Applicant filed on 9 May 2022 – Exhibit A1, page 1.

    [20] Transcript or proceedings (“Transcript”), page 26, line 24.

    [21] Transcript, page 76, lines 19-21.

    [22] Transcript, page 77, lines 19-25.

22. In 2010, whilst in secondary school,[23] the Applicant represented Australia on tour in Japan whilst playing rugby union.[24] However, he was expelled for misbehaviour whilst on tour and, aged 16 or 17, “That’s when I started hanging around on the streets”.[25]

    [23] Transcript, page 27, line 16.

    [24] Transcript, page 26, lines 46-47.

    [25] Transcript, page 33, lines 1-14.

23. The Applicant began using marijuana “[a]s soon as I got kicked out of school”, which he continued until he was arrested in 2020.[26] The Applicant also started using the drug ‘ice’, being methamphetamine, after he was stabbed in 2012 through to his arrest in 2020.[27] On 3 August 2021, while in immigration detention, the Applicant reported that he was still using drugs and his clinical records say, “THC everyday, ICE only when he can get it”.[28] Under cross-examination the Applicant candidly addressed this report:[29]

    [26] Transcript, page 37, lines 30-38.

    [27] Transcript, pages 38, lines 1-7.

    [28] Exhibit R3, page 124.

    [29] Transcript, page 38, lines 33-42.

    Mr Hutton:     … Then it says, “Still using drugs”. And then it says, “THC every day, ice only when he can get it”. I assume “THC” there is a reference to marijuana or cannabis. Did you tell a GP in about August of last year that you were still using drugs?

    Applicant:     August last year, like if I was outside, yes.

    Mr Hutton:     Yes, so if you were outside you would still be using drugs?

    Applicant:Yes, I was outside I would still be smoking, yes.

    Mr Hutton:     It’s just that you can’t get it whilst you’re in immigration detention?

    Applicant:     Yes.

24. The Applicant wrote that he was the youngest of two children and that he has a sister. The Applicant wrote that his parents are currently struggling financially and that his father has had to come out of retirement as his parents’ pensions are insufficient. The Applicant wrote that his parents are putting their house on the market to pay for his rehabilitation and that they “… are willing to drop the AVO and they’re willing to show their support during this time and situation I’m currently in”.

25. The Tribunal has a character reference from the Applicant’s mother dated 8 May 2022.[30] In her evidence, the Applicant’s mother describes herself “… as a mother of prodigal son”. The Applicant’s mother describes her son as someone who, like many, joined the wrong crowd and experimented with drugs and made mistakes. The Applicant’s mother wrote:

    We have begun to sell our house to support [the Applicant]. Unfortunately, not enough time for us to keep lawyers, but we still have enough funds to support him in residential rehab to address his drug use if he is to come back out in the community.

    For his bad friends, we have connected with Reverend [ST] and have spoken to his Youth Director to help assist [the Applicant] once he comes out. He will be kept busy socially, so he can stay focused and stay away from past friends. I’ve also talked to [the Applicant] and he has promised me to move on from them. I trust my son. I believe he deserves this final chance.

    We have no family in NZ. We had worked hard in Australia, built homes and made communities here. I have daughter and her family here, and my grand son [J] here, [the Applicant’s] son – and all of my sisters and brothers here.

    [30] Exhibit A2.

26. The Applicant’s mother’s evidence concludes with the words “His future belongs here in Australia, with his family, and especially with us as his aging parents, and his young son”.

27. The Reverend ST’s evidence is consistent with that of the Applicant’s mother. In his letter of 5 May 2022, the Reverend ST wrote of his plans for the Applicant should he be released back into the Australian community. The Reverend ST wrote:

    If given the opportunity to address his errors here in the community, I as his minister will contribute to his recovery. I have spoken to his family and to [the Applicant] who has agreed to volunteer one day a week to assist our Church volunteers in the maintenance and upkeeping of our Church grounds. On top of this I’ve asked our Your Director [EF] to include him in our teams weekly meetings, and in the execution of our Youth Program for the remainder of 2022. Finally I will sit and meet with [the Applicant] once a month to check in on his progress and wellbeing.[31]

    [31] Exhibit A6, page 2.

28. The Tribunal does not have a character reference from the Applicant’s father; however the Applicant’s aunt’s evidence[32] echoes the evidence of the Applicant’s mother. The Applicant’s aunt gave oral evidence and highlighted for the Tribunal her belief that the Applicant will focus on taking care of his mental health through counselling from the church,[33] to get a job, and to take care of his grandmother and son.

    [32] Exhibit A3.

    [33] Transcript, page 74, lines 13-14.

29. The Applicant addressed his relationships with his grandmother and his son in his statement, in addition to his mental health and drug use.

30. The Applicant’s evidence is that his grandmother requires full-time care as she had a stroke in 2003. The Applicant’s evidence is that he is required for lifting and carrying his grandmother and making meals.[34]

    [34] Exhibit A1, pages 1-2.

31. Of his relationship with his son, the Applicant wrote:

    I don’t want my son to grow up without his Dad. I want to change my life for him. I want to be there and guide my son the right way. I want him to know me. I want him to know that his Dad can change, and he can do anything. I want to be there to support him, and watch him grow and learn from my mistakes.[35]

    [35] Exhibit A1, page 2.

32. The Tribunal accepts that the Applicant has a son who was born in 2011,[36] making him ten years old as at the date of this decision. In making this finding, the Tribunal notes that it does not have a birth certificate of the Applicant’s son before it and that the Applicant was uncertain of his son’s birthday in his oral evidence.[37]

    [36] Exhibit R2, s 501 G-Documents, G4, page 202.

    [37] Transcript, page 36, line 46.

33. The Applicant’s son lives with his mother and, on the evidence before it, the Tribunal is satisfied that she is his sole parental carer. Under cross-examination on this issue, the Applicant displayed candour in his responses:[38]

    [38] Transcript, page 37, lines 12-19.

    Mr Hutton:                 Does [the son’s mother] encourage you to have contact with him or does she prevent you from having contact with him?

    Applicant:                 Yes, she prevents contact.

    Mr Hutton:                 Why is it that she doesn’t want you to see your son?

    Applicant:Because she’s scared that he might turn out to be like – you know, just sort of my footpath.

    Mr Hutton:                 You mean in terms of your record of offending or something else?

    Applicant:                  Just gang relations.

34. There is much evidence in the documentary material before the Tribunal relating to the Applicant’s gang relations, being Outlaw Motorcycle Gangs in particular. The Department of Home Affairs has been advised that the Applicant is a “… an associate of the Rebels OMCG [Outlaw Motorcycle Gang] as well have having links to the Loyal Samoan Bloods (LSB) Pacific Islander Gang”.[39]

    [39] Exhibit R2, s 501 G-Documents, G4, page 48.

1. The Applicant denies that he is affiliated with the Rebels,[40] although he admits being in the youth gang the Loyal Samoan Bloods.[41] The Applicant left the Loyal Samoan Bloods after approximately two years after he was stabbed in 2012.[42] The Applicant further admits “hanging out” with his cousins with Rebels associations,[43] and “hanging around” Outcasts gang members to the point that opposing gang members thought he was associated with them.[44]

   [40] Transcript, page 39, line 13.

   [41] Transcript, page 39, lines 17-21.

   [42] Transcript, page 39, lines 28-46.

   [43] Transcript, page 40, lines 40-44.

   [44] Transcript, page 43, lines 19-24.

2. In ascertaining the extent of the Applicant’s Outlaw Motorcycle Gang associations, and the weight to be placed on them, the closing submission of the Respondent is fair in the circumstances, namely that:

   Yes so, in terms of the applicant’s involvement in outlaw motorcycle gangs, the issue appears to be this, at least in our submission, is that even if the tribunal weren’t to find that he had a patch, or that he was a sergeant in arms or any kind of formal involvement there, there seems to be a persistent affiliation with members of outlaw motorcycle gangs, including the Young Samoan Bloods but also the Rebels and then also, this other gang being the Outcasts and possibly, some other gang whilst he was in Adelaide.

   And it’s this particular association which seems to have a criminogenic connection with it, and the fact that it’s been persistent and that there may have been periods where he’s said that he’s turned his back on the outlaw motorcycle gangs but has continued to associate with them afterwards, gives rise to a risk that if he were released to the community, that he would continue to have gang involvement.[45]

   [45] Transcript, page 96, lines 9-22.

3. The Respondent’s submission is supported by a report by the Australian Institute of Criminology:

   The stigma associated with having been a member of a criminal group can also disrupt and prevent the formation of new social ties, increasing the individual’s isolation after disengagement and disassociation (Harris 2015; Wright 2006). Further, an ex-member’s access to legitimate employment opportunities can be limited, providing few prosocial prospects for creating a new life and identity outside of the criminal group (Gjelsvik & Bjorgo 2012; Lindley 2016).[46]

   [46] Exhibit R1, s 501 G-Documents, G4, page 183.

4. Consistent with the Australian Institute of Criminology’s report, the Applicant has had limited access to legitimate employment opportunities since leaving the Loyal Samoan Bloods. He has worked intermittently in warehousing, demolitions, and installing gyprock.[47] The Applicant also worked for a period as a “standover guy”[48],collecting debts owed to him.[49] This continued until the Applicant was shot (in 2017).[50]

   [47] Transcript, page 35, lines 30-43.

   [48] Transcript, page 41, line 15.

   [49] Transcript, page 41, lines 26-27.

   [50] Transcript, page 41, lines 15-17.

5. The Applicant’s mental health was affected after he was shot. The Applicant said:

   I was diagnosed with PTSD three months after the shooting. I got shot in 2017, just three days before my birthday. It was all, yes, it was all drug related and stuff, but that kind of opened my eyes, you know, like, you shouldn’t trust the people that you hang with. I realised like, in that world is it’s a fast life, like yes, like there’s nothing else to do but just sit around, smoke drugs, laugh, have a laugh. But then, at the end of the day, it’s just going to ruin your mental, like, you know, your mental health. Like, it kind of gave me like, made me look over my shoulder every time I leave the house. I couldn’t leave the house without a weapon, you know.[51]

   [51] Transcript, page 28, lines 38-46.

6. In addressing his mental health and drug use in his statement, the Applicant wrote:

   Your honor at the age of 18 I was stabbed in the chest and ear by someone who I always looked up to [a]nd who I called my best friend. From here I started using drugs – weed and ice. I will deal with this. I will beat this.

   In 2017 my partner left me then I was back to square one, lost my license and my job [and] also lost my family along the way I was back on the streets again going through suicidal thoughts and battling depression again.

   I was shot [in 2017] 3 days before my birthday.

   Your honor I’m suffering from PTSD it was a traumatic experience at the time for me and my family.[52]

   [52] Exhibit A1, page 2.

7. After the Applicant was shot, he moved to Adelaide for about two-and-a-half years.[53] Whilst in Adelaide, the Applicant began attending church and Pastor RTA formed the view that the Applicant “… really started to turn his life around. Sadly, after a few months [the Applicant] slipped back into some of his old habits, and he ended up returning to the life that he was so desperate to leave”.[54]

   [53] Transcript, page 35, lines 40-41.

   [54] Exhibit A8, page 1.

8. The Applicant has a lengthy criminal history dating back to 2010, although the Tribunal is only concerned with his objectively serious antecedents incurred whilst an adult.[55]

   [55] Exhibit R2, s 501 G-Documents, G4, pages 21-23.

9. On 22 March 2012, aged 18 years, the Applicant was sentenced to a bond at the Local Court at Campbelltown and permitted nine months to complete a forum sentencing program for the offences of “Assault officer in execution of duty-T2” and “Resist officer in execution of duty-T2”.

10. On 2 April 2014, aged 20 years, the Applicant was sentenced to a fine of $400 and to pay compensation of $600 at the Local Court at Blacktown for the offence of “Destroy or damage property <=$2000-T2”.

11. On 4 July 2017, aged 24 years, the Applicant was sentenced at the Local Court at Parramatta for the following matters:

    (a)For two counts of “Common assault (DV)-T2”, the Applicant was sentenced to a bond with 18 months supervision by the New South Wales Probation Service for counselling, educational development or drug and alcohol rehabilitation.

    (b)For one count of “Common assault (DV)-T2”, the Applicant was sentenced to a fine of $1000 and a bond with 18 months supervision by the New South Wales Probation Service for counselling, educational development or drug and alcohol rehabilitation.

    (c)For two counts of “Stalk/intimidate intend fear physical etc harm (domestic)-T2”, the Applicant was sentenced to a bond with 18 months supervision by the New South Wales Probation Service for counselling, educational development or drug and alcohol rehabilitation.

12. The Tribunal has before it a Pre-Sentence Report dated 4 July 2017 conducted by Mr Finch, a Community Corrections Officer at the Parramatta Community Corrections Office. In that report, the Applicant reported that he was single and had “… one child aged six years residing with the latter’s mother”. The Applicant was not working, or receiving government benefits at the time of the report.[56] Mr Finch reported:

    Inquiries revealed that his upbringing was marred by tough physical discipline and bullying at school and at other institutions. Upon leaving home at the age of 16 years, [the Applicant] sought companionship and support from motorcycle clubs and remains affiliated to these groups.

    Inquiries revealed that [the Applicant] sustained injuries as a result of receiving gunshot wounds to his legs in an assault during April 2017. While some therapy was administered in hospital, the offender has ceased treatment and reported physical discomfort after walking and standing for a prolonged period of time. No results of medical assessments have been made available to Community Corrections to confirm the extent of injuries or the current level of employment.[57]

    [56] Exhibit R3, page 25.

    [57] Exhibit R3, pages 25-26.

13. In sentencing the Applicant, His Honour Magistrate Still said:

    In relation to the charges, they are both serious in terms of intimidate by the language you used and you have assaulted three people and you have punched [a female] in the head. It is only your early guilty plea that keeps you out of gaol. I want to make that quite clear to you.[58]

    [58] Exhibit R2, s 501 G-Documents, G4, page 42.

14. His Honour noted that the Applicant had been cooperative and shown remorse. His Honour made an order that the Applicant was not to assault, harass, stalk, intimidate, threaten or approach the victims, or damage their property, and that warned the Applicant that if he breached his bonds then he would go to gaol.[59]

    [59] Exhibit R2, s 501 G-Documents, G4, pages 42-43.

15. The Applicant subsequently engaged with Blacktown Community Corrections and, on 14 August 2017, advised that he was no longer involved in a gang.[60] He subsequently commenced limited employment in demolitions.[61] On 22 December 2017, Blacktown Community Corrections reported:

    The offender was attending [church] which assisted with social aspects of his situation coming from a strict upbringing and the pastor came from a similar background whom was reaffirming that gangs is not the was to go. The offender did obtain part-time work on behalf of a friend and was initially referred to the Aggressions program however due to the change of dates was accepted into the foundations program., which he successfully completed.[62]

    [60] Exhibit R3, page 59.

    [61] Exhibit R3, pages 60, 62.

    [62] Exhibit R3, page 69.

16. On 3 September 2020, aged 27 years, the Applicant was sentenced at the Local Court at Wollongong to a term of three months imprisonment for “Custody of knife in public place -first offence”. When cross-examined about this offending, the Applicant gave reasons for his custody of the knife:

    After the shooting then again I was diagnosed with PTSD, you know, like, ever since I came back to Sydney I just ended up having - carrying weapons with me - like, you know, just for my protection. I know it’s no excuse and that but - like, yes, yes, I was just in fear of my own life.[63]

    [63] Transcript, page 52, lines 19-23.

17. Whilst at the Metropolitan Remand and Reception Centre, on 19 August 2020, the Applicant was assessed and gave the following impression:

    Inmate appeared to be experiencing symptoms of PTSD, Anxiety and grief. There were no signs of suicidal and/or self-harm ideation, intentions or plans at this time. The identifiable stressors were his possible deportation to the NZ, his son and his own physical health. His past traumatic experiences seem to have left him more vulnerable/fragile to heightened stress levels. His protective factors are his son, his family and his interest in seeking mental health treatment.[64]

    [Emphasis added]

    [64] Exhibit R3, page 73.

18. On 23 December 2020, aged 27 years, the Applicant was sentenced at the Local Court at Mt Druitt to an aggregate term of 13 months imprisonment with a non-parole period of seven months for the offences of “Possess unauthorised prohibited firearm-T2”, “Stalk/intimidate intend fear physical etc harm (domestic)-T2”, and “Acquire etc prohibited firearm-subject prohibition order-T2”.

19. The Tribunal has before it a copy of a Sentencing Assessment Report dated 23 December 2020 authored by Ms Faith, a Community Corrections Officer at the Bathurst Community Corrections Office. In that report, the Applicant “… described a close and supportive relationship with his sister and extended family”.[65] The Applicant “… indicated that he has an adolescent child from a previous relationship, with whom he has not had any contact for a period of four years”. He also “… reported that he supplements his income with sporadic cash in hand employment”.[66] Of the Applicant’s attitudes, Ms Faith reported:

    [The Applicant] attributed the commission of the current offences to a breakdown in his relationship with his parents due to financial stress as a result of his social assistance suspension, antisocial peer associations and an undiagnosed mental health disorder related to trauma that occurred in 2017.[67]

    [65] Exhibit R3, page 35.

    [66] Exhibit R3, page 36.

    [67] Exhibit R3, page 36.

20. Of the Applicant’s social influences, Ms Faith reported:

    [The Applicant] reported a close affiliation to an Outlaw Motorcycle Club and reported that he was the victim of a shooting that occurred in 2017, as a result of this association.

    As a consequence of this alleged incident, [the Applicant] reported that he has experienced hyper vigilance in relation to his personal safety.[68]

    [68] Exhibit R3, page 36.

21. Ms Faith reported that “[s]ince his incarceration, [the Applicant] has engaged in psychological counselling to address his undiagnosed mental health issues”.[69] Ms Faith further reported that the Applicant “… identified physical health issues that could impact his ability to perform regular duties” in relation to community service work.[70] Ms Faith did not specify these “physical health issues”.

    [69] Exhibit R3, page 37.

    [70] Exhibit R3, page 37.

22. Ms Faith assessed the Applicant “… at a Medium-High risk of reoffending according to the Level of Service Inventory – Revised (LSI-R)”.[71] She assessed the Applicant as being unsuitable to undertake community service work as “[a]ny conflicts arising from [the Applicant’s associations with an Outlaw Motorcycle Club would not be able to be effectively managed to ensure his personal safety”.[72]

    [71] Exhibit R3, page 38.

    [72] Exhibit R3, page 38.

23. In sentencing the Applicant, His Honour Magistrate Gibson said:

    The facts in relation to the intimidation are relatively serious. It is aggravated by the fact that it was in the home of his parents. He really had an explosion of temper or anger that was directed towards his family and put them in some considerable fear. He was then removed from the house and it was in that context when he was stopped in his friend’s vehicle that the firearm was found. [The Applicant] has participated in a sentence assessment report. It is clear that he has some affiliation with an outlaw motorcycle club and as a result of which in 2017 he was shot.

    He has been suffering from hyper-vigilance as a result of that and it might in part explain why he obtained an, in this case, imitation firearm to potentially protect himself from the potential for further gang-related retaliation. There is no suggestion that he was going to use the firearm for anything untoward at the time, but he was simply leaving his mother’s and father’s house at the time he took it with him. He did not produce it at the house. I have had regard to the fact that he would be considered a medium to high risk of reoffending and would require some significant supervision in the community.[73]

    [Emphasis added]

    [73] Exhibit R2, s 501 G-Documents, G4, page 33, lines 17-33.

24. His Honour went on to make an Apprehended Violence Order protecting the Applicant’s parents, saying: “You are not to assault, threaten, stalk, harass, intimidate them. You cannot contact them in any way”.[74] This Apprehended Violence Order remains in place until 22 December 2022.[75]

    [74] Exhibit R2, s 501 G-Documents, G4, page 34, lines 26-27.

    [75] Exhibit R4, page 3.

25. On 8 February 2021, following an appeal at the District Court at Parramatta, the Applicant’s sentence of 23 December 2021 was reduced from a term of 13 months imprisonment to a 9-month term of imprisonment.[76]

    [76] Exhibit R2, s 501 G-Documents, G4, page 36.

26. The Tribunal has before it material relating to the Applicant’s conduct whilst in prison under sentence,[77] and whilst in immigration detention.[78]

    [77] Exhibit R3, pages 45-91.

    [78] Exhibit R3, pages 92-121.

27. The Tribunal notes alleged misconduct in prison, such as on 25 February 2021 where a correctional officer was “bailed up by [the Applicant] in a very heated argument with several threats towards staff” that required the attendance of the Immediate Action Team (IAT),[79] being “the taskforce, the [riot] squad”.[80]

    [79] Exhibit R3, page 45.

    [80] Transcript, page 54, lines 3-4.

28. The Tribunal notes alleged misconduct in immigration detention, such as on 20 January 2022 where a Serco Emergency Response officer was allegedly assaulted by the Applicant.[81] In regard to that occasion, the Applicant denies grabbing the officer by the throat, but admits pushing the officer away on the shoulder.[82] The Tribunal observes that the Applicant’s security risk assessment whilst in detention rates him as ‘High’ for aggression and violence.[83]

    [81] Exhibit R3, page 95.

    [82] Transcript, page 54, lines 40-41.

    [83] Exhibit R3, page 105.

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

29. In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires 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.

30. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:

    a)the nature and seriousness of the non-citizen’s conduct to date; and

    b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    The Nature and Seriousness of the Applicant’s Conduct to Date

31. 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.

32. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, the following types of crimes or conduct below are viewed very seriously by the Australian Government and the Australian community:

    (i)violent and/or sexual crimes;

    (ii)crimes of a violent nature against women or children (regardless of the sentence imposed);

    (iii)acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed), are viewed very seriously by the Australian Government and the Australian community.

33. The Applicant has committed several crimes of a violent nature from the earliest days of his adulthood, and indeed beforehand. He has assaulted police, a domestic partner, and family members. Such crimes are viewed very seriously by the Australian Government and the Australian community.

34. The Applicant was afforded several chances by the Courts prior to serving the actual period of imprisonment that has caused him to fail the character test. These were judicial warnings of criminal sanction of the last resort that the Applicant did not heed.

35. The Applicant’s offending is viewed very seriously by the Tribunal.

36. Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    (i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    (ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    (iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

    (iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.

1. Aged 18 years, the Applicant assaulted and resisted police in the execution of their duty.[84] Unfortunately, the Tribunal does not have before it the relevant sentencing remarks from the Local Court at Campbelltown. Nevertheless, violent crimes against government officials in the performance of their duty are viewed seriously by the Tribunal.

   [84] Exhibit R2, s 501 G-Documents, G4, page 23.

2. In making this finding, the Tribunal has placed limited weight on the Applicant’s alleged misconduct in prison and in immigration detention as these allegations were not tested and proven to a sufficient standard for the Tribunal to rely upon.

3. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.

4. The Applicant’s most recent custodial term came after a lengthy period of offending and the receipt of lesser sanctions. The Applicant received fines and bonds from New South Wales Local Courts over the course of years, prior to his first term of actual imprisonment in 2020. His Honour Magistrate Still had made it “quite clear” in 2017 that “It is only your early guilty that keeps [the Applicant] out of gaol”.[85] The Applicant did not heed His Honour’s clear warning.

   [85] Exhibit R2, s 501 G-Documents, G4, page 42.

5. Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. In these circumstances, the Tribunal notes the escalation in seriousness of the Applicant’s offending history as evidenced by his criminal history.

6. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.

7. The Applicant’s offending has been perpetrated against different victims at different times, although the violent nature of offending is consistent. The Tribunal is of the view that serial violent offending is an unacceptable breach of the peace, however the Tribunal ultimately places little weight on this factor.

8. Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.

9. There is no evidence before the Tribunal that the Applicant has provided false or misleading information to the Department. Therefore, the Tribunal does not regard this factor to be relevant.

10. Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.

11. There is no evidence before the Tribunal that the Applicant was formally warned about the consequences of further offending in terms of his migration status as a non-citizen. Therefore, the Tribunal does not regard this factor to be relevant.

12. The Tribunal does not consider factors (f) and (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.

    The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

13. 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.

14. Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

    a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    (i)information and evidence on the risk of the 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.

    Nature of harm should the Applicant engage in further criminal or other serious conduct

15. 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.

16. The Applicant recognises that his offending hurt his parents, which is a source of sadness for him.[86] It is unnecessary to labour the damage that would be caused should the Applicant offend against his parents again.

    [86] Transcript, page 26, lines 31-34.

17. Obvious harm would be caused should the Applicant re-offend against his previous partner or offend against any new domestic partner. Although the Applicant did not give evidence about re-partnering, the Tribunal notes the Applicant’s relative youthfulness and that there exists a possibility that he will re-partner in the future. Accordingly, any risk of harm from further offending against domestic partners is not confined to the Applicant’s previous victim.

18. The Tribunal assesses that the Applicant’s other offending, including the carrying of weapons, damage to property, and assault of police, are such that the Australian community would be intolerant of the harm caused should that criminal conduct be repeated.

    Likelihood of engaging in further criminal or other serious conduct

19. As indicated above, in his sentencing remarks His Honour Magistrate Gibson accepted Ms Faith’s assessment that the Applicant had a Medium to High risk of re-offending and that the Applicant would “… require some significant supervision in the community”.

20. As also indicated above, at the Metropolitan Remand and Reception Centre on 19 August 2020 the Applicant was assessed as having protective factors, including “… his son, his family and his interest in seeking mental health treatment”.

21. Under cross-examination, the Applicant was asked if he would commit any further offences if released into the community. The Applicant gave an answer placing his family as a reason why he would not:

    No, I won’t because I’ve taken this time now to weigh - taken this time away being away from my family, I kind of release [sic] how much I’ve lost, you know. During my time away I’ve (indistinct) of went over my life and just realised how I’m only getting older, you know. My son’s only getting older. I want to be a part of it - like, I want to see my nephew, nieces, and nephews, grow as well, you know. And not only that, but I want to have a better relationship with my son - you know, when his mum decides to - like, you know, turn the tables.[87]

    [87] Transcript, page 55, lines 44-47, page 56, lines 1-4.

22. Nevertheless, and consistent with the Respondent’s submissions, the Applicant’s associations with Outlaw Motorcycle Clubs have a significant criminogenic connection. The Applicant addressed his associations in his closing address:

    To put it where it says - what bonding do I have with the outlaw motorcycle gang, I never was part of the gang. I just wanted to have a sense of belonging, you know. I just hung around my cousins and followed them into bad influences. Since my time away, I’ve realised who’s helped me more. And I’ll be honest with you, there was no one, like, no one that I could, you know, that was in gang-related or whatever, you know, or any of my boys, none of them helped me, only my family.[88]

    [Emphasis added]

    [88] Transcript, page 102, lines 25-31.

23. The Applicant’s realisation that it is his family who have helped him most, rather than his gang-related associates, comes late and after several years of offending. Nevertheless, it weighs in his favour and is corroborated by the support the Applicant has received from his family and his strongly prosocial friends, such as Mr WFA and the Reverend ST, during these proceedings. Indeed, the Applicant’s family and friends have encouraged him away from gangs where younger members of the Pacific Island community are used by others to their detriment. For example, under cross-examination, Mr WFA gave the following insight:

    Mr Hutton:     And in that sense, do you know whether or not he still has any connection with those - with any outlaw motorcycle gangs or other antisocial peers?

    Mr WFA:        No, sir. The last time I had a conversation with [the Applicant] in regards to that life, he said that he’d be giving it up and that he’s moving away from all of those boys, trying to stay clean now.

    Mr Hutton:     Yes?

    Mr WFA:        I’m taking him at his word, and obviously, if that’s not true, I’ll be pretty angry with [the Applicant] myself.

    Mr Hutton:     Yes?

    Mr WFA:        Part of the whole reason we (indistinct) the whole family, was his commitment to make the change and his commitment to move forward with his life.

    Mr Hutton:     What’s - - -?

    Mr WFA:        And that’s the reason in regards to the (indistinct), sir.

    Mr Hutton:     Yes?

    Mr WFA:        I’m hoping that his statement to me is true.

    Mr Hutton:     What do you think would happen if he came out and he continued to offend or associate with antisocial peers?

    Mr WFA:        If he was to continue with that lifestyle and with that peer friends, it wouldn’t end well for him.

    Mr Hutton:     Yes?

    Mr WFA:        I don’t think those people have his best interests at heart, so, and that story ends in, unfortunately, a very familiar way that most of us have heard before, you know. Either his drug use continues, his mental health deepens and worsens. He might affect someone in the community. Yes, like, unfortunately, in the Pacific Islander community, you know, our younger generation aren’t really necessarily used for the betterment of their own lifestyle, they just use us as the soldiers, as the carriers.[89]

    [89] Transcript, page 82, lines 11-38.

24. The Tribunal is satisfied that the Applicant has increasingly realised the value of his prosocial family and friends whilst in custody and immigration and resolved not to reoffend. However, the Applicant’s resolve not to reoffend remains untested in the community in circumstances where the Applicant has a lengthy history of drug abuse and criminogenic associations with Outlaw Motorcycle Gangs.

25. Considering all the evidence before it, His Honour Magistrate Gibson’s findings that the Applicant would require significant supervision in the community after his release are not displaced. Without such supervision, the Tribunal regards it as more likely than not that the Applicant would engage in further criminal or serious conduct if released into the Australian community.

    Conclusion: Primary Consideration 1

26. Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

27. Paragraph 8.2 of the Direction provides:  

    (1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

    (2) This consideration is relevant in circumstances where:

    (a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

    (b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

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

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

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

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

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

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

    iii. efforts to address factors which contributed to their conduct; and

    (d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.

28. It is unnecessary to repeat relevant the evidence and findings considered in Primary Consideration 1 for the purposes of Primary Consideration 2, particularly as the Applicant’s most recent offending constitutes family violence against his parents.

29. The Applicant has committed two separate acts of family or domestic violence. The first was against a domestic partner in 2017 and the second was against his parents in 2020.

30. The Applicant did not sign the Facts Sheet for the 2017 offending.[90] The Facts Sheet before the Tribunal is also unamended. The Tribunal is therefore not satisfied that the Fact Sheet before it is the same as what was tendered and exhibited for the purposes of sentence.

    [90] Exhibit R3, page 22-24.

31. The Applicant denied that he signed the Facts Sheet for the 2020 offending,[91] which is heavily amended.[92] Despite the Applicant’s evidence that he did not sign the amended Facts Sheet, it is favourable to him compared to the unamended version.[93] Materially, on the amended Facts Sheet the Applicant was not convicted on the basis that he used an unauthorised imitation firearm to threaten or intimidate his parents.[94] This is in the Applicant’s favour as had such a weapon been used then it would have been a serious escalation from the Applicant’s 2017 offending.

    [91] Transcript, page 51, lines 9-13.

    [92] Exhibit R3, pages 32-34.

    [93] Exhibit R2, s 501 G-Documents, G4, pages 28-30.

    [94] Exhibit R3, page 33.

32. Having considered the material before it, the Tribunal does not make any findings that the Applicant’s criminal acts of domestic or family violence are increasing in frequency or seriousness. Given these criminal acts were perpetrated against different victims, the Tribunal also does not make any findings as to the cumulative effect of the repeated acts of family violence.

33. As indicated by his pleas of guilty, the Tribunal accepts that the Applicant has accepted responsibility for his criminal family violence related conduct and his oral evidence to the Tribunal indicates that he understands the impact of his behaviour on his victims.

34. The Tribunal notes the Respondent’s submission that there are few records of the Applicant recently engaging rehabilitative programs, particularly going to drug and alcohol problems and dealing with aggression.[95] Balanced against this is the Applicant’s view, as expressed in his closing address:

    They’re saying, yes, we should have seek - we should seek help in here, we should see therapy in here. There’s no such thing as therapy inside the system. It’s all corrupted. You know, I can’t seek help in here when I don’t have the support of my family with me. You know, my family only realised how much support I need after going through all this stuff right now, you know.[96]

    [95] Transcript, page 97, lines 25-39.

    [96] Transcript, page 103, lines 1-6.

35. Be that as it may, the Tribunal is not satisfied that the Applicant has made efforts to address the drug and aggression factors which contributed to his most recent criminal conduct beyond relying upon prosocial family and friends for support and guidance.

36. Finally, it is the Tribunal’s view that the 2017 offending – when the Applicant was expressly warned of imprisonment by His Honour Magistrate Still during sentencing – was a formal warning about the consequences of further acts of family violence. The Applicant did not heed this warning when he committed the 2020 offending against his parents.

    Conclusion: Primary Consideration 2

37. Primary Consideration 2 weighs moderately against revocation of the cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

38. Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under s 501, or non-revocation under s 501CA, is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

39. Paragraph 8.3(4) of the Direction sets out a number of factors that must be taken into consideration with respect to the best interests of minor children in Australia:

    (a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    (b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    (c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    (d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

    (e)whether there are other persons who already fulfil a parental role in relation to the child;

    (f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    (g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

    (h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

1. The Tribunal notes its findings above regarding the Applicant’s son, who is aged ten years. The views of the child are unknown to the Tribunal.

2. The Applicant has not had a meaningful relationship with his son for more than three years.[97] The child is in the care of his mother. The child’s mother currently prevents contact with the Applicant due to the Applicant’s gang relations, although the Applicant’s sister had contact with the child as recently as 2020.[98] The Applicant is engaged with the lives of his nieces and nephews,[99] however the Tribunal does not characterise these relationships as being paternal.

   [97] Exhibit R2, s 501 G-Documents, G4, page 203.

   [98] Transcript, page 23, line 46.

   [99] Exhibit R2, s 501 G-Documents, G4, page 205.

3. On the evidence before it, the Tribunal does not foresee that further separation of the Applicant from his son would cause his son detriment. Indeed, the contrary may be true if the Applicant engages in further criminal or other serious conduct. It is likely that the lack of a meaningful relationship between the Applicant and his son in recent years has prevented his exposure to family violence, or the experience of physical or emotional trauma arising from the Applicant’s drug use and criminal conduct.

4. The Applicant aspires for a positive relationship with his son. In his examination-in-chief, the Applicant said:

   Yes, I just want to show him the right way, you know. I already lived a life. I still living the life, like being stuck in here. But this is not where the road ends, you know. I just want to show him the right way, like working hard for honest money and just being a good person.[100]

   [100] Transcript, page 28, lines 28-31.

5. It would be of undoubted benefit to his son if the Applicant were successful in this worthy aspiration.

6. Although a positive and meaningful relationship between the Applicant and his son seems unlikely in the short-term, it may be possible that such a relationship could be formed in the medium or long-term. The Tribunal assesses that the support of family members, in particular the Applicant’s sister Ms SV, would be integral to the Applicant being successful in forming a positive relationship with his son.

7. Given the dedication of Ms SV to her brother, as demonstrated in her support of him in these proceedings, and the relative youth of the child, the Tribunal is satisfied that over time the Applicant may indeed show his son “the right way”.

   Conclusion: Primary Consideration 3

8. Primary Consideration 3 weighs moderately in favour of the revocation of the cancellation of the Applicant’s visa.

   PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

   The relevant paragraphs in the Direction

9. In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.

10. Paragraph 8.4(2) of the Direction provides:

    In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

    (a) acts of family violence; or

    (b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

    (c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

    (d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

    (e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

    (f) worker exploitation.

11. Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

12. Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

13. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[101]

    [101] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466; and FYBR v Minister for Home Affairs [2019] FCA 500.

14. Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.

    Analysis – Allocation of Weight to this Primary Consideration 4

15. Accordingly, in assessing the weight attributable to Primary Consideration 4, the Tribunal has regard to the following matters:

    ·The Applicant moved Australia when he was five years old and is now aged 29 years.

    ·The Applicant remains close with his sister and his mother.

    ·The Applicant has maintained intermittent employment.

    ·The Applicant’s son is relatively young, is in the care of his mother, and has not maintained a meaningful relationship with his father for most of his life.

    ·The Applicant commenced offending as a youth, committed his first adult offence aged 18, and has re-offended on multiple occasions since.

    ·The Applicant has committed serious violent offences against family members, a domestic partner, and government officials in the performance of their duty.

    ·The Applicant’s offences are very serious.

    ·The Applicant’s preparedness to commit crimes raises serious concerns about his character.

16. The Australian community condemns family violence. The Applicant has engaged in serious criminal conduct. The Applicant’s conduct raises serious character concerns.

    Conclusion: Primary Consideration 4

17. Primary Consideration 4 weighs heavily against revocation of the cancellation of the Applicant’s visa.

    OTHER CONSIDERATIONS

18. It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. The four stipulated sub-paragraphs are considered at (a), (b), (c) and (d) respectively.

    (a) International non-refoulement obligations

19. The Applicant does not make any claims with respect to Australia’s non-refoulement obligations.

20. The Tribunal has considered if any claims to arise on the evidence. In his Personal Circumstances Form dated 22 January 2021, the Applicant wrote in response to a question about any concerns or fear that would happen to him if he were to return to New Zealand:

    Most of my Aunties & Uncles moved to Aus I only have cousins in New Zealand and who are heavily involved with gangs either end up dead or be in jail over there.[102]

    [102] Exhibit G1, s 501 G-Documents, G4, page 210.

21. The Tribunal is not satisfied that a claim with respect to Australia’s non-refoulement obligations arises on the evidence. This Other Consideration is therefore not relevant to the determination of this application.

    (b) Extent of Impediments if Removed

22. As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)the non-citizen’s age and health;

    (b)whether there are any substantial language or cultural barriers; and

    (c)any social, medical and/or economic support available to that non-citizen in that country.

23. Having regard to the abovementioned matters, the Applicant is aged 29 years and the evidence before the Tribunal does not support the making of findings regarding:

    (a)physical ill health, noting however that the Applicant has been shot and stabbed previously but that enduring physical ramifications of these injuries are unknown to the Tribunal;

    (b)substantial language or cultural barriers if removed to New Zealand; or 

    (c)any lesser social, medical and/or economic support available to the Applicant in New Zealand that he would otherwise be able to access in Australia.

24. The Tribunal places weight on the Applicant’s mental health and his plan to seek treatment. The Tribunal accepts that the Applicant experiences symptoms of Post-Traumatic Stress Disorder, Anxiety and grief. The Tribunal also accepts evidence of the Applicant of his “plan to access Counselling in the Community when Released”.[103]

    [103] Exhibit G1, s 501 G-Documents, G4, page 209.

25. The evidence of Mr WFA,[104] and the Reverend ST,[105] indicates that the Applicant’s plan is well developed. Indeed, the Tribunal acknowledges Mr WFA’s professional expertise in this regard.

    [104] Exhibit A5.

    [105] Exhibit A6.

26. The Tribunal has also considered the evidence of Ms TFL as to the lack of supports in New Zealand, who said:

    I’m also on the expert group in Wellington for people with mental health and alcohol and drugs. Meaning, I am greatly involved in the community. To answer your question about programs being available, the answer is yes. But let me tell you the honest truth. The young people that you are deporting back to New Zealand where they don’t know anybody in New Zealand, you are just deporting them back into a big, huge hole. They are causing more strife and catastrophe in New Zealand …[106]

    [106] Transcript, page 78, lines 43-47, page 79, lines 1-2.

27. Mr JT, who has known the Applicant through church for 15 years, is of the view that:

    [The Applicant] has limited family support overseas, but more importantly, he will not be given the same support in order for his life to change for the better. Here in Australia, provides [the Applicant] the best opportunity for rehabilitation and to also be of service to his community and family here in Australia.[107]

    [107] Exhibit A7.

28. Although the Applicant’s mental health can be treated in New Zealand, the Tribunal is satisfied that the prosocial family and friends supporting him in Australia would better meet his needs.

29. Considering the evidence before the Tribunal, the extent of impediments if removed carry a slight level of weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    (c) Impact on victims

30. This Other Consideration (c) requires that decision-makers must consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

31. The evidence before the Tribunal does not indicate a negative impact on any victims, in particular the Applicant’s parents, should the Applicant remain in Australia. On the contrary, the Tribunal notes the evidence of the Applicant’s mother who wrote, “Australia is where I now call home, forgive us parents for the mistakes of our Son, but you will not be punishing him, by sending him – you’ll be hurting us”.[108]

    [108] Exhibit A2.

32. The Tribunal has considered the impact of its decision on members of the Australian community and the Applicant’s numerous victims who are silent in this matter. It has balanced that consideration with the weight of evidence from the Applicant’s mother. Accordingly, this Other Consideration (c) is neutral.

    (d) Links to the Australian Community

33. In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:

    ·the strength, nature, and duration of ties to Australia; and

    ·the impact on Australian business interests.

    The strength, nature, and duration of ties to Australia

34. The Tribunal is bound to consider the impact of its decision on the Applicant’s immediate family members in Australia, where those family members have citizenship, permanent residency, or an indefinite right to remain in Australia. In so doing, the Tribunal has noted the Applicant’s extensive family ties to Australia. The Tribunal has placed particular weight on the Applicant’s relationship with mother and sister.

35. The Tribunal has considered that the Applicant has lived continuously in Australia since 1998. Pastor RTA’s view is that “If [the Applicant] returns to New Zealand, he has no family network to support him”.[109]

    [109] Exhibit A8, page 2.

36. Although the Applicant has made minor positive vocational contributions during that time, the Tribunal balances these contributions against his criminal offending.

37. Given the Applicant’s strength, nature and duration of his ties to Australia the Tribunal places some weight in favour of revoking the Applicant’s mandatory visa cancellation.

    Impact on Australian business interests

38. The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction. 

    Findings: Other Considerations

39. 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: carries a slight level of weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa;

    (c)impact on victims: neutral; and

    (d)links to the Australian community: carries some weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    CONCLUSION

40. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or, the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted and found above, the Applicant does not pass the character test.

41. Having regard to the Direction and to the totality of the evidence, the Tribunal is of the view that there is not another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision.

42. In reaching that conclusion, the Tribunal has had regard to the considerations referred to in the Direction. The Tribunal makes the following findings:

    ·Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa;

    ·Primary Consideration 2 weighs moderately against revocation;

    ·Primary Consideration 3 weighs moderately in favour of revocation;

    ·Primary Consideration 4 weighs heavily against revocation; and

    ·The weight attributable to the four-listed Other Considerations as found above.

    ·I consider that the totality of the heavy weight I have attributed to Primary Consideration’s 1, 2 and 4, outweighs the weight I have allocated to the remaining Primary and Other Considerations;

    ·A holistic view of the considerations in the Direction therefore favours non-revocation of the mandatory cancellation of the Applicant’s visa.

43. Consequently, the Tribunal cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    DECISION

44. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 9 March 2022 to not revoke the cancellation of the Applicant’s visa.

I certify that the preceding 153 (one hundred and fifty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member George

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

Associate

Dated: 22 June 2022

Date(s) of hearing:	19 and 20 May 2022
Applicant:	By video
Solicitors for the Respondent:	J Hutton, Australian Government Solicitor

ANNEXURE A – EXHIBIT REGISTER

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
A1	Applicant’s Statement	A	Undated	9 May 2022
A2	Character Reference of Ms PF	A	8 May 2022	9 May 2022
A3	Character Reference of Ms MS	A	Undated	9 May 2022
A4	Character Reference of Mr JV	A	6 May 2022	9 May 2022
A5	Character Reference of Mr WFA	A	6 May 2022	9 May 2022
A6	Character Reference of the Reverend ST	A	5 May 2022	9 May 2022
A7	Character Reference of Mr JT	A	Undated	9 May 2022
A8	Character Reference of Pastor TLA	A	9 May 2022	10 May 2022
A9	Character Reference of Ms TFL	A	9 May 2022	10 May 2022
A10	Character Reference of Ms SV	A	16 May 2022	16 May 2022
R1	Respondent’s Statement of Facts, Issues and Contentions	R	28 April 2022	29 April 2022
R2	Section 501 G-Documents (G1 to G5 paged 1 to 264)	R	-	23 March 2022
R3	Respondent’s Tender Bundle	R	-	29 April 2022
R4	Respondent’s Bundle of Summonsed Material	R	-	11 May 2022