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

[2021] AATA 4432

Figota and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4432 (30 November 2021)

Division:GENERAL DIVISION

File Number(s):      2021/6447

Re:Kamuta Figota

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:30 November 2021

Place:Sydney

The reviewable decision made on 9 September 2021 not to exercise the discretion under section 501CA(4) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is set aside, and in substitution it is decided that there is another reason why the mandatory cancellation decision should be revoked.

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

Mrs J C Kelly, Senior Member

CATCHWORDS

MIGRATION – cancellation of Applicant’s Class TY, Subclass 444 Special Category (Temporary) visa – Applicant is a citizen of New Zealand – failure to pass character test – whether there is another reason to revoke the visa cancellation – Direction No. 90 – protection of the Australian community – best interests of minor children in Australia – expectations of the Australian community – extend of impediments if removed – links to the Australian community – decision under review set aside

LEGISLATION

Crimes Act 1900 (NSW) s 93B

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

CASES

FYBR and Minister for Home Affairs [2019] FCAFC 185

PNLB and Minister for Immigration and Border Protection [2018] AATA 162

Saleh and Minister for Immigration and Borer Protection [2017] AATA 367

SECONDARY MATERIALS

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

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

30 November 2021

The reviewable decision

1. The Applicant was born in Samoa in 2001 and arrived in Australia from New Zealand on 7 July 2007, aged six. He has applied to this Tribunal for review of the decision made by a delegate of the Respondent on 9 September 2021 not to exercise the discretion under section 501CA(4) of the Migration Act 1958 (Cth) (the Act) to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (the reviewable decision).

   The issues

2. Section 501CA(4) of the Act sets out the requirements for revocation of the mandatory cancellation of a visa under s 501(3A) of the Act. They are whether the Minister (and now the Tribunal exercising the powers and discretions available to the Minister) is satisfied that:

   (i)the Applicant made representations in accordance with the invitation issued under s 501CA(3);[1] and

   (ii)the Applicant passes the character test (as defined in s 501(6);[2] or, if the Applicant does not pass the character test, that there is another reason why the cancellation decision should be revoked.[3]

   [1] The Act s 501CA(4)(a).

   [2] The Act s 501CA(4)(b)(i).

   [3] The Act s 501CA(4)(b)(ii).

3. It is not in dispute that the Applicant does not pass the character test as defined in s 501(6)(a) and s 501(7) of the Act because he has a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more. He has made representations as required by s 501CA(4)(a) of the Act.

4. Therefore, the issue to be decided is whether there is another reason why the cancellation decision should be revoked under s 501CA(4) of the Act having regard to the considerations prescribed in Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90) given by the Minister pursuant to s 499(1) of the Act.  Direction 90 came into effect on 15 April 2021.

   Direction 90

5. The Preamble in Part 1 of Direction 90 sets out Objectives, including the purpose of the Direction, and the Principles which provide the framework within which decision-makers should approach their task.  Part 2 of Direction 90 is about exercising the discretion.  It sets out primary and other considerations and the factors to be considered in each case. 

6. The principles that provide the framework for decision-makers are set out in paragraph 5.2 of Direction 90:

   (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, with respect to 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 the 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 conned conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

7. Paragraph 7 of Direction 90 gives directions about taking the relevant considerations into account:

   (1)  In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

   (2)  Primary consideration should generally be given greater weight than the other considerations.

   (3)  One or more primary considerations may outweigh other primary considerations.

8. Each relevant consideration will be addressed in turn.

   Primary considerations

   Protection of the Australian community

9. The first primary consideration is protection of the Australian community from criminal or other serious conduct.  Paragraph 8.1(1) of Direction 90 states:

   (1)   When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

10. Paragraph 8.1(2) of Direction 90 requires a decision-maker to have regard to two matters when considering the protection of the Australian community:

    (a)The nature and seriousness of the Applicant’s conduct; and

    (b)The risk to the Australian community should the applicant commit further offences or engage in other serious conduct.

    The nature and seriousness of the Applicant’s conduct

11. The Applicant has the following criminal convictions and sentences:

Court Date	Date of Offence	Offence	Result
21/01/2020	14/09/2019	Throw missile at police officer at public disorder no abh-T2	Fine: $1,200.
		Riot-T1	Intensive Correction Order (ICO) for 14 months with 225 hours of community service.
1/06/2020	10/12/2019	Assault occasioning actual bodily harm-T2	Fine: $500.
9/12/2020	12/09/2020	Common assault-T2	Imprisonment for 13 months with a non-parole period of 4 months.

1. The first two offences occurred when 60 to 80 males gathered at a shopping centre to create a “rap video” and displayed violent behaviour in public.  When NSW Police attended the incident, the group reacted.  The Applicant made the following admissions during an electronically recorded interview.  He identified himself on CCTV footage throwing 13 glass bottles at police.

2. The offence of Riot-T1 is committed by each person “Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety.”[4]

   [4] Crimes Act 1900 (NSW) s 93B.

3. Each of the offences committed on 14 September 2019 is a violent crime and is considered to be very serious.[5]  Further, both crimes were committed against government officials in the performance of their duties and are to be viewed as serious.[6]  Both crimes demonstrate the Applicant’s lack of respect for the Australian legal system and those who enforce it.

   [5] Direction 90, paragraph 8.1.1(1)(a)(i).

   [6] Direction 90, paragraph 8.1.1(1)(b)(ii).

4. About three months after the first offence, on 10 December 2019 at around 8 pm, the Applicant was a passenger in the co-accused’s car, with two other males.  The co-accused stopped the car at a crossing and the victims, whom he knew, crossed the road.  One victim raised her middle finger.  The co-accused parked the car behind the victims’ car.  The Applicant and co-accused got out of the car and approached the victims.  The Applicant was involved in a physical altercation with the victims.  He confirmed to police that he punched one victim in the face.  That is a very serious violent crime.  He told the Tribunal that he knew of the girl but did not know the male and had no direct personal relationship with either.  At that time, the Applicant knew that he had pending proceedings in relation to the first two offences.

5. The sentencing magistrate’s remarks about the 12 September 2020 offence can be summarised as follows.  At 2:30 am, the victim and witnesses were standing in a large car park outside a McDonalds.  The incident was captured on CCTV footage.  The Applicant was subject to the ICO which had been imposed on 21 January 2020 for an act of violence and aggression.  He has been given opportunities after that offence and another act of violence and aggression, assault occasioning actual bodily harm committed on 10 December 2019.  He drove a sedan into a parking spot pushing the victim, who was standing in it, out of the way.  The Applicant and the co-accused approached the victim yelling aggressively.  The Applicant walked close enough to the victim that their faces were touching.  The pushing and the yelling were acts of violence and aggression.  The Applicant slapped the victim’s face with enough force to shift the turban on the victim’s head, causing immediate pain, and the victim stepped back.  The Applicant followed him.  The victim said that he was not there for a fight, did not see the Applicant coming and was not trying to block him.  The Applicant’s behaviour was ridiculous.  The objective seriousness of the offence was “above the midlevel”.

6. The Applicant blamed a lack of sleep from overworking to make ends meet and being irritated with his passenger for his offending.

7. Direction 90 requires that the sentence imposed be considered.[7]  The 14 month ICO imposed for the Riot-T1 offence, a first offence, demonstrates that the court considered that to be a very serious offence.  The 13-month term of imprisonment imposed on the Applicant on 9 December 2020 for the common assault-T2 offence is a significant sentence.  The non-parole period was four-months.  The Tribunal has acknowledged in a number of cases that incarceration is a sentence of last resort in the sentencing hierarchy and reflects the objective seriousness of the offence.[8]  

   [7] Direction 90, paragraph 8.1.1(1)(c).

   [8] PNLB and Minister for Immigration and Border Protection [2018] AATA 162; Saleh and Minister for Immigration and Borer Protection (Migration) [2017] AATA 367.

8. The Applicant has demonstrated a pattern of offending over a 12-month period.  The offending was frequent and there was a trend of increasing seriousness of the offences.[9]  His offending is reactive rather than premediated, as Ms Doan, psychologist, described it.

   [9] Direction 90, paragraph 8.1.1(1)(d).

9. The cumulative effect of the Applicant’s repeated violent offending within a relatively short period of 12 months with the final very serious offence being committed while he was subject to an ICO, must be viewed very seriously.[10]  He has been given opportunities when he was sentenced to non-custodial sentences after the first and second incidents of offending, but he was not deterred and continued to mix with negative peers.

   The risk to the Australian community should the applicant commit further offences or

   engage in other serious conduct

   [10] Direction 90, paragraph 8.1.1(1)(e).

10. The Government’s view is that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, and some conduct and the consequential harm, if repeated, is so serious that any risk that it may be repeated is unacceptable.[11]

    [11] Direction 90, Paragraph 8.1.2(1).

11. When considering the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the first consideration is the nature of the harm to individuals or to the Australian community should the Applicant engage in further criminal conduct.[12]  Considering the Applicant’s criminal offending summarised above, the nature of the harm includes serious physical and psychological harm.  According to Ms Doan, psychologist, the victim is likely to be someone unknown to the Applicant and most likely another male adult.

    [12] Direction 90, Paragraph 8.1.2(2)(a).

12. The next consideration is the likelihood of the Applicant engaging in further criminal conduct, taking into account information and evidence about the risk of re-offending and rehabilitation achieved at the time of decision.[13]

    [13] Direction 90, Paragraph 8.1.2(2)(b).

13. The Applicant’s case is that there were a number of circumstances that led to his offending.  He had feelings of loneliness, was exposed to family violence in his home from a young age, the impact of Islander culture affected his response to violence, he associated with peers who influenced him negatively in the past, and he suffered unresolved grief over the deaths of his maternal grandparents within a short period of time before his offending began.  He was particularly close to his grandmother whom he called Mum, who raised him from about age one to six.  The Applicant acknowledged that he was quick to anger when tired or stressed.

14. He claims that he will not reoffend for the following reasons.  He has insight into his offending, including the consequences of his actions, including on his family.  He feels remorseful for his offending and has offered written apologies to his victims and to the Court.  He has conducted himself appropriately in prison and immigration detention.  He has completed a number of courses to address impulsivity, anger management and self-control while in immigration detention, and a positive lifestyle program while in prison. He has a strong family and social network, including a very supportive partner with whom he plans to purchase a home and marry.  If released into the Australian community, the Applicant will be employed as a Responsible Service of Alcohol (RSA) marshal.

15. When dealing with the Applicant’s most recent offence of common assault, the sentencing magistrate made the following salient comments.  He was unsure of the weight to give to the Applicant’s apology when he had ongoing offending of violence while on the ICO.  The Applicant alternated between blaming the victim and acknowledging his own inappropriate offending conduct.  The Applicant thought that the matter had resolved with him and the victim shaking hands after the incident.  The magistrate said:

    Again, common sense, the victim would do anything after the incident because he does not want to be attacked further by this individual.  He does not want to be slapped across the head again.  He does not want the car driven into him again.  Of course he says to him, “It’s fine, it’s fine, go away”.  

16. The Applicant provided a report dated 18 May 2021 written by Ms Doan, psychologist, who is training to become a forensic psychologist.  Despite her relatively recent training and practice, her report and her evidence were considered and comprehensive.  Ms Doan assessed the Applicant on 15 and 16 April 2021.  Her assessment was multifaceted.  It is not necessary to detail each aspect of that assessment.

17. Ms Doan assessed the Applicant’s risk of violence reoffending to be moderate, but not imminent, primarily due to his level of insight and actions taken to address factors contributing to his offending.  Ms Doan reported that that risk appeared to be inflated by the number of historical or static risk factors, that is, that cannot be changed, and any dynamic risk factors identified for him were only considered to be partially present and due to his current uncertain situation.

18. Ms Doan identified the following factors that protect against violent offending.  The Applicant has some internal capacity against offending, such as general empathy and self-control and a prosocial identity, and he is supported by family, his partner and prosocial peer network.

19. Ms Doan answered “yes” to the question:

    Can someone who has witnessed domestic violence and had been victimized by bullies as a child, react to this violence exposure by developing, behavioural, emotional or learning problems?  

20. Having answered “yes” to that question, she proceeded to answer the next question about the therapeutic approach she would recommend to change a particular undesirable negative behaviour.

21. Ms Doan set out “potential treatment targets”:

    ·Depression.  She made a provisional diagnosis of Major Depressive Disorder in partial remission.  She considered that it was likely that the Applicant had a level of ongoing psychological pain related to his childhood trauma and loss of grandparents which could be a contributing factor in explosive outbursts.

    ·Grief and bereavement.

    ·Anger management and emotion regulation.

    ·Alcohol relapse prevention.

    ·Assertive communication skills.

    ·Achieving a more secure attachment style with a prosocial support network.

    ·Prosocial problem-solving and goal-setting skills. 

22. Ms Doan addressed the likelihood of the Applicant reoffending after undergoing treatment:

    Should Mr Figota meaningfully engage in therapeutic intervention to address his violent offending behaviour, then it is likely that his dynamic risk factors can be addressed and reduced while his protective factors can be increased. This in theory would lead to a reduction in Mr Figota’s risk of recidivism.

1. Ms Doan did not believe that offence-specific intervention is available in detention and believed that it was effective when delivered in the community.  If the Applicant “meaningfully engaged” in such intervention if released from detention, it should increase his chance of successful rehabilitation. 

2. Ms Doan noted that if the Applicant were released into the Australian community, he would have an established setting to facilitate his rehabilitation, including stable accommodation, healthy partnership and full-time employment, which he would not have if he were deported to New Zealand.  

3. All those factors and the other protective factors Ms Doan referred to, were present when the Applicant offended for the final time and the only one absent during the first two incidents of offending was his current, very impressive and supportive partner.  Against that, the Applicant’s employment was one factor to which he attributed his behaviour on 12 September 2020.  He was tired after a 14-hour shift.

4. A factor not known by Ms Doan at the time of writing her report, which may assist the Applicant avoid reoffending, is that his family have moved from the area where his negative peers lived.

5. When considering his risk of reoffending, it is relevant that the Applicant did not reoffend while he was on bail and in the community from the date of the last offence on 12 September 2020 until sentenced on 9 December 2020.  He was also subject to the ICO during that period.  That he did not reoffend is hardly surprising.  Since then, he has been incarcerated and detained.  I accept that he has learned some lessons from those experiences, including that he can be deported if he reoffends, which is a disincentive to reoffending.  His behaviour has been appropriate in those facilities.  If he is released, he will be subject to parole until 8 January 2022 which may act as some constraint on the Applicant.  However, his ability to manage his impulse control and anger and his capacity to refrain from mixing with negative peers, to whom he referred as “the boys” in an interview with Corrective Services, has not been tested in the community.  While he has undertaken various courses, he has not undergone any appropriate treatment as recommended by Ms Doan.

6. I accept Ms Doan’s assessment that the Applicant’s risk of reoffending is moderate and that if he meaningfully engages with the treatment she proposes, that will “in theory” reduce his risk of recidivism.  As she also reported, the Applicant had intended to engage with treatment after his first offence but did not.

7. I accept that he tried to see a psychologist when he was in gaol but none was available.  In detention there is a long waiting list, in part because of Covid-19, or you pay a lot of money which he does not have because he is not working.   

8. The Applicant acknowledged that managing stress and his mental health is important to not reoffending.  He said that his support network will help him, he has not talked to negative peers since he has been incarcerated and he will get a referral to a psychologist if he is released into the community.  He had approached Ms Doan who told him he would need a referral and he would be on a waiting list. 

9. The Applicant told the Tribunal that his family followed the old ways.  If you were sad or depressed, you pray or get a hiding.  I infer that he has struggled to embrace a new way of dealing with his mental illness.  He has undertaken online courses and has made the efforts outlined above to seek psychological treatment.  Several relatives and friends gave evidence that they believed that the Applicant is genuinely remorseful, has learned his lesson and has been doing courses to help himself.

10. I accept that his partner will be very supportive of the Applicant getting appropriate psychological treatment if he is released into the community.

11. The family pressure on the Applicant to work hard to support them may make it difficult for him financially and time wise to access psychological assistance, although he understands that he needs to not overload himself with work to reduce his stress.

12. The primary consideration, protection of the Australian community, weighs heavily against revocation of the visa cancellation decision.

    Best interests of minor children in Australia

13. The next relevant consideration is the third primary consideration prescribed by Direction 90, the best interests of minor children.[14]  Direction 90 lists a number of considerations relevant to determining the best interests of a child.[15]

    [14] Direction 90, paragraph 8.3.

    [15] Direction 90, paragraph 8.3(4).

14. The Applicant does not have any minor children, but he does have three sisters who are minors.  They are aged 11, 13 and 16 years of age.

15. Although he is not the parent, he has been pivotal in each of his younger sisters’ lives, emotionally, and since he was 16 years old, financially as well.  He was required to leave school to work and earn money to help his father support the family financially.  He seems to have been the main financial provider.  His mother looks after the home.  When he was incarcerated, the oldest sister, now aged 19, had to go to work to contribute financially to the family.  

16. The Applicant has been important to all his sisters because he was able to help them communicate with their parents across a cultural, language, and generation divide.  The oldest sister has to some extent performed that role in his absence.  He also provided day to day care of his minor sisters, including taking them to school, helping them with their homework and doing some housework.  He took them out to the park and to the movies.  The oldest sister has some learning difficulties.  I doubt that she can assist her minor sisters to the extent the Applicant has and can in the future.  Her assistance does not replace the importance of the Applicant’s role in their lives.

17. The three younger sisters have stated that they would not feel safe without the Applicant to protect them.

18. The Applicant is a second father figure to his three sisters.  He tried to shield them from the hard things of life.  Recently, the oldest of the three ran away from home.  He feels that if he had been at home, she would have confided in him.  He spoke to her and convinced her to return home.

19. The Applicant said that he will not be expected to contribute financially to his family, but he wants to.  He expects his sisters to complete year 12.  His mother said during her oral evidence that she expects him to continue supporting the family financially.

20. The Applicant has had limited personal contact with his three youngest sisters since he was incarcerated in December 2020.  They visited him three times, but he does not like to see them in that situation.  He has had regular telephone contact with them as he would if he were removed from Australia to New Zealand.  Those circumstances do not diminish the impact on them if he was removed from Australia.

21. Another factor that needs to be considered are the plans the Applicant and his partner have for the future, including to save to buy a property and have a family.  The Applicant said that they will live together in two or three years’ time, when his partner has finished college and pursued her softball career.  They would live in the Manly area, some distance from south-western Sydney where his family live.  His partner described how she has engaged with his family. 

22. The Applicant’s relationship with his partner may impact the time and financial means he has available to assist his sisters in the next few years and more so thereafter, but he will continue to fulfil an important role in his younger sisters’ lives, financially, emotionally, and day-to-day, for the foreseeable future.   

23. If the Applicant were to return to New Zealand, he would not be able to provide the same financial, emotional, or day-to-day care to his younger sisters.  His capacity to establish himself there without any support is questionable.  Even if he found employment, he would not have the same financial resources as he has when he works in Australia because he will have costs of living including accommodation and utilities, which he does not currently have.  Communications by telephone or audio-visual means cannot replace personal contact.  As he said, it is not the same as being face to face and being able to hug somebody.

24. There are several other minor children in the Applicant’s life, the children of his uncles.  He mixed with them socially, for example after church when they met at the home of a family member, or when he called in two or three times a week to help with mowing the lawn or fixing the car.  He will do so again if he is released into the community.  He does not play a parental role in their lives.  I give limited weight to their best interests

25. This consideration weighs very heavily in favour of revocation of the visa cancellation decision.

    Expectations of the Australian Community

26. The fourth primary consideration is expectations of the Australian Community.  Paragraph 8.4 of Direction 90 provides that the Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community.  Direction 90 further states that non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa.

27. The Full Court of the Federal Court of Australia considered clause 11.3(3) of Direction 65, which is analogous to paragraph 8.4 of Direction 90, in FYBR v Minister for Home Affairs [2019] FCAFC 185. The majority (Charlesworth and Stewart JJ) concluded that clause 11.3 (and by extension paragraph 8.4) contains a statement of the government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or the evidence about those expectations.

28. The question for the decision-maker is the weight to be attached to this consideration.

29. The Applicant has engaged in violent crimes, including against government officials in the performance of their duties and against strangers.  He has breached the trust of the Australian community and there is a moderate risk that he will do so again.

30. Australia may afford a higher level of tolerance to criminal conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age.[16]  The Applicant has been in Australia since he was six years old, and began offending when he was 18, when he had been working for about two years.  He has lived in Australia for most of his life.  When he was at school, he played rugby and volleyball and represented his school in both.  He has been involved in church activities in the past.

    [16] Direction 90, paragraph 5.2(4).

31. This consideration weighs significantly against revocation of the visa cancellation decision.

    Other considerations

32. The relevant other considerations in this case are extent of impediments if removed from Australia and links to the Australian community.

    Extent of impediments if removed

33. Direction 90, paragraph 9.2 requires a decision-maker to consider the extent of impediments that may be faced if the person is removed from Australia to their home country and sets out matters relevant to that consideration.

34. The Applicant is a young man who has a provisional diagnosis of Major Depressive Disorder.  He has experienced suicidal ideation on several occasions at the ages of 10, 15, and when his grandmother died.  He found leaving school and going to work stressful.  He does not have strong family or social support in New Zealand.  In Samoan culture, the family is paramount.  His partner, an Aboriginal Australian woman who represented Australia at the recent Olympic Games, has very firmly said that she will not relocate with him.  The limited financial resources of his immediate family will permit few if any visits to see the Applicant.  His mental health is likely to be adversely affected as he tries to establish himself in New Zealand.  He will have to try to find accommodation and work to support himself and his family in Australia, while isolated from his immediate and extended family and partner.  In those circumstances, his impulsivity and anger management issues may result in  anti-social behaviour and possibly reoffending.    

35. He has transferrable skills as a labourer and RSA marshal.  He has a strong work ethic.  He will face no substantial language or cultural barriers and will have access to the social, medical and welfare support available to other citizens of New Zealand, which is likely to be of a similar standard to that available in Australia.

36. Overall, the Applicant will face significant impediments if removed to New Zealand.

37. This consideration weighs significantly in favour of revocation of the visa cancellation decision.

    Links to the Australian community

38. The consideration links to the Australian community has two limbs.[17]  Only the first is relevant, the strength, nature and duration of ties to Australia.

    [17] Direction 90, paragraph 9.4.

39. The Applicant has resided in Australia since 2007 when he arrived aged six.  He played rugby and volleyball at school at representative level until required to leave school to work to help support his family financially.  He was active in his church with is family for some time.  He offended for the first time when he was 18 years old.  He worked for about three years before he was incarcerated.  His previous employer provided written and oral evidence that the Applicant was friendly, reliable and did his job well when he worked as a Responsible Service of Alcohol Marshal. 

40. As well as the adverse impact that the Applicant’s removal from Australia will have on his three sisters who are minors, his removal will adversely impact his parents and the oldest sister.  His capacity to contribute financially to the family will be reduced, for the reasons given above, as will his capacity to assist around the home and provide emotional support.  The oldest sister’s desire to train and work in aged care may be frustrated as she has to continue working in a carpet warehouse to help support the family financially.  The Applicant’s immediate family members hold Class TY Subclass 444 Special Category (Temporary) visas and have a right to remain in Australia indefinitely.

41. The Applicant’s partner of about 18 months is an Australian citizen and Kamilaroi woman.  She strongly supports the Applicant.  She has talked about them being in a de facto relationship and their plans to marry, buy a house and operate a joint business.  She has stated firmly that she will not relocate to New Zealand.  The Applicant’s removal from Australia will be traumatic for her.

42. The Applicant also has extended family members and friends in Australia, several of whom provided written and oral evidence supporting the Applicant.  He has strong relationships with several of those individuals. 

43. The consideration, links to the Australian community, weighs heavily in favour of revoking the visa cancellation decision.

    Conclusion

44. Weighing all the considerations addressed above, I find that the  considerations favouring revocation of the mandatory visa cancellation decision outweigh those considerations favouring not revoking that decision.  There is another reason to revoke the mandatory cancellation decision.

    Decision

45. The reviewable decision made on 9 September 2021 not to exercise the discretion under section 501CA(4) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is set aside, and in substitution it is decided that there is another reason why the mandatory cancellation decision should be revoked.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

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

Associate

Dated: 30 November 2021

Date(s) of hearing:	15 & 16 November 2021
Solicitors for the Applicant:	C Ukaegbu, Spiritus Law Group
Solicitors for the Respondent:	G Ho, Clayton Utz