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

Gent and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 185 (12 February 2024)
Division:GENERAL DIVISION
File Number(s): 2023/8784
Re:John Karena Gent
APPLICANT

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

DECISION
Tribunal:Senior Member A Poljak
Date:12 February 2024
Place:Sydney

The decision under review is affirmed.
...........................[SGD].............................................
Senior Member A Poljak
Catchwords
MIGRATION – Cancellation of Class TY Subclass 444 Special Category visa under subsection 501(2) – where applicant does not pass the character test – applicant has substantial criminal record – whether the discretion under section 501(2) should be exercised – consideration of Ministerial Direction No. 99 – decision under review is affirmed
Legislation
Migration Act 1958 (Cth)
Secondary Materials
Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member A Poljak
12 February 2024

Mr John Karena Gent, the applicant, is a citizen of New Zealand. The applicant first arrived in Australia at 30 years of age on 21 March 2004 and was granted a Class TY Subclass 444 Special Category visa (visa) upon arrival. He returned to New Zealand on 28 January 2013 for 10 months and last arrived in Australia on 21 November 2013.
The applicant has a substantial criminal record. He began offending in Australia in 2007 and was convicted of offences in 2007, 2011, 2012, 2015 and 2021.
On 14 June 2023, the applicant was notified by the Department of Home Affairs that it was intending to consider cancellation of his visa under subsection 501(2) of the Migration Act 1958 (Cth) (the Act) on the basis that it reasonably suspected the applicant did not pass the character test because of his "substantial criminal record". The applicant was invited to comment.
On 19 July 2023, the applicant provided a response to the notice including a Personal Circumstances Form, an additional statement, identity documents, letters of support and medical reports.
On 20 November 2023, a delegate of the minister exercised their discretion to cancel the applicant’s visa under subsection 501(2) of the Act (visa cancellation) on the basis that the applicant failed to pass the character test because of his ‘substantial criminal record’. This is the decision under review in these proceedings (decision under review).
Issue
It is accepted that the applicant does not pass the character test by virtue of his sentence of imprisonment for the offending conduct: subsections 501(6)(a) and 501(7)(c) of the Act. As such, the determinative issue for determination is whether to exercise the discretion in subsection 501(2) of the Act to cancel the Applicant's visa, which requires consideration of the primary and relevant other considerations prescribed by Direction 99.
Relevant Legislative Provisions
Under subsection 501(2) of the Act, the delegate of a Minister administering the Act may cancel a person’s visa if the delegate of the Minister reasonably suspects that the person does not pass the character test, and the person does not satisfy the delegate of the Minister that the person passes the character test. Subsection 501(6) defines the character test.
Relevantly, a person does not pass the character test if the person has a “substantial criminal record” as defined by subsection 501(7). Paragraph 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
In considering whether to exercise the discretion in subsection 501(2) of the Act, the Tribunal is required by subsection 499(2A) of the Act to have regard to the Minister’s Direction, Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99).
The preamble to Direction 99 provides a framework for the guidance of decision-makers. Paragraph 5.1 of Direction 99 comprises a statement of objectives. Paragraph 5.2 sets out 'principles' that should inform the decision-makers exercise of discretion:
(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.
(5) With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) 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 8.55(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.
Where the discretion to cancel a visa on character grounds is available, then, informed by the Principles in paragraph 5.2 of Direction 99, the decision-maker must take into account the primary considerations in paragraph 8 of Direction 99, in deciding whether to cancel a non-citizen's visa.
Paragraph 8 of Direction 99 identifies the five 'Primary considerations', which the Tribunal must consider. They are (paragraph 8(1)-8(5)):
a)    protection of the Australian community from criminal or other serious conduct;
b)    whether the conduct engaged in constituted family violence;
c)    the strength, nature and duration of ties to Australia;
d)    the best interests of minor children in Australia; and
e)    expectations of the Australian community.
Paragraph 9 identifies other considerations which must be taken into account. Those other considerations listed are non-exhaustive, and are as follows (paragraph 9(1)):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
Considerations
Protection of the Australian community from criminal or other serious conduct
The Tribunal must have regard as a primary consideration to the protection of the Australian community from criminal or other serious conduct. In this respect, paragraph 8.1(1) of Direction 99 states as follows:
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.
Paragraph 8.1(2) of Direction 99 provides that decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the applicant's conduct
The applicant’s offending conduct is viewed very seriously. Paragraph 8.1.1(1)(a)(i), (ii) and (iii) of Direction 99, provides that crimes of a violent nature, crimes of a violent nature against women and children, and acts of family violence are viewed very seriously by the Australian Government and the Australian community, regardless of the sentence imposed.
Almost all of the applicant’s convictions, or the circumstances surrounding them, relate to or involve the presence of violence.
On 14 August 2007, the applicant was found guilty of Assault occasioning actual bodily harm- T2 and a 6-month good behaviour bond was imposed. There is very limited evidence available on the facts and circumstances of this offence. At hearing, the applicant said he couldn’t recall the details but said that his ex-partner (Kelly) was the victim. He said drugs and alcohol were involved in his offending.
On 22 October 2007, the applicant was convicted of Common assault- T2 and Contravene prohibition/restriction in order (domestic) and was sentenced to 6 months imprisonment for each offence suspended upon entering into a S12 Bond. The common assault for which the applicant was convicted on 22 October 2007 was committed on 4 October 2007. On that date, an Apprehended Domestic Violence Order (ADVO) was put in place protecting the victim, the applicant’s former partner Kelly, from the applicant. The circumstances of the offence are contained in the NSW Police Fact Sheet which provide, in summary, that the applicant was aggressive and hostile to the victim after arguing for hours. The applicant was verbally abusing the victim and threw a power drill at the victim’s head. The power drill hit the back of the victim’s head. This attack occurred when the victim was pregnant and had another infant child. It is noted that the police fact sheet indicated that in addition to the AVO, the applicant “had a prior incident of domestic violence against the victim”. At hearing, the applicant said he couldn’t recall the incident but said he was using ice and alcohol at the time. He confirmed that he was aware that an ADVO was in place.
On 22 March 2011, the applicant was convicted of Destroy or damage property <=$2000 (DV) and a 12 Month good behaviour bond was imposed. There is very limited evidence of the nature of this offence before the Tribunal. From the applicant’s evidence it appears that the offence involved the breaking of a window. At hearing, he confirmed that he “punched a window” during an argument with his ex-partner Kelly and was “very intoxicated” at the time.
On 19 July 2012, the applicant was convicted of Common assault (DV)- T2 and sentenced to 8 months imprisonment suspended upon entering into a S12 Bond. As a result of this offence, the applicant was in breach of his good behaviour bond for Destroy or damage property <=$2000 (DV), which was called up for resentencing. The applicant was resentenced to 4 months imprisonment to be suspended upon entering into a S12 Bond.
In sentencing remarks, Magistrate Gillies relevantly stated:
… [the applicant’s representative] is begging for a supervised bond. The problem with that is that you were on a supervised bond, and I have two problems with that. One is that that did not work last time and it would perhaps bring the Local Court into disrepute if, having done that previously - and it only had two conditions, be of good behaviour and supervised, and you did neither of those.
What is the definition of insanity is keeping doing the same thing expecting a different result, so it would be madness for me to accede to what [the applicant’s representative] is urging upon me. It is aggravated because you were on a bond. It is aggravated because the children are watching this. Mr Gent, I do not know if you grew up in a house where there was violence, but as a small child, you know what is going on.
You know and you are fearful. You are fearful for your mother and what might happen, and that has terrible damage later on which comes out in behavioural problems, trouble at school, all of those things. It is just not fair. Little girls work out what to expect from the husbands in their lives, little boys work out that that is how you behave as a man, and you are not setting a very good example and you are setting the next generation up for the misery that you are perpetrating. All right.
…
… You cannot afford to lose this temper of yours…
No other details are provided about the circumstances of the offending conduct. But it is noted that the offence involved violence in a domestic setting in the presence of children.
On 11 February 2015, the applicant was convicted of assault occasioning actual bodily harm (DV) and sentenced to 20 months imprisonment to be served by way of an intensive corrections order. As a result of this offence, the applicant breached his suspended sentence and his conviction for common assault from 19 July 2012 was called up. The applicant was resentenced to 8 months imprisonment commencing on 11 February 2015 to be served by way of an intensive corrections order.
The circumstances of the offence relating to the conviction on 11 February 2015 are contained in the sentencing remarks of Magistrate Bartley. In summary, the offence occurred on 12 January 2013, and involved the applicant holding and immobilising his partner’s brother while his partner struck the victim multiple times to the head. The applicant also struck the victim directly to the head. This serious act of violence against his partner’s brother could have resulted in his death. Magistrate Bartley relevantly stated:
“…The offender held the victim while [redacted] punched him to the head, a number of blows. Then there was a later round of direct blows by the accused around the time they were at her bushes, near the subject premises.
I adopt those findings of fact, I will not repeat them all but suffice to say that as the complainant Mr [redacted] said the blows by [redacted] inflicted when the accused was holding him so as to render him vulnerable and unable to protect himself. "They were full on king hits". Mr [redacted] said that on 23 May 2014, transcript p 16, line 50 and I accept that.
Mr Gent could have killed. In this dispute between relations the victim was the brother of [redacted] who was punching him directly while Mr Gent held him. Mr Gent immobilised Mr [redacted] and thereby [almost] killing him, giving him brain damage, loss of sight, hearing, smell, fractured facial bones that have never completely healed. They were serious blows and they had great potential to cause harm, luckily the harm was only a soft tissue in effect.
Blows to the head are very serious. Mr [redacted] said they were full on king hits. It could be said and I find that immobilising the victim as Mr Gent did was cowardly and then again he was off balanced, as it were, struggling in or trying to get out of bushes and he directly struck Mr [redacted] again. To pick up a vogue colloquial phrase, it was not even a one off coward punch, there were several king hits which were cowardly. It's a very serious offence, it was good luck rather than good management he does not have a dead body on his hands and finding himself in another court.”
On 15 February 2021, the applicant was convicted of Drive licence suspended under s66 Fines Act- 1^st off and fined $550.
The applicant is a repeat and frequent offender. His offending conduct is predominantly of a similar nature, in that it involves violence in a domestic setting. Sentences of imprisonment are considered sentences of last resort in the criminal justice system. The applicant has been sentenced to a term of imprisonment for 5 separate offences.
It is also noted that in completing his incoming passenger card on arriving from New Zealand on 21 January 2013, the applicant untruthfully answered “No” to the question “Do you have any criminal convictions?”. At this time the applicant had five convictions in Australia.
The applicant’s repeated breaches of good behaviour bonds, breaching of an ADVO, driving on a suspended licence and lying on his incoming passenger card, all demonstrate that the applicant does not respect Australian laws.
It is conceded that the applicant’s offending conduct is viewed very seriously.
Risk of Reoffending
For the following reasons, I am of the view that there is a real risk of the applicant engaging in further criminal or other serious conduct. Through the repeated nature of the applicant’s conduct, particularly his continual breach of good behaviour bonds, he has shown an inherent disregard for the laws of Australia and the judicial system and has not been deterred from reoffending by his past convictions and sentences.
I do note that there has been some “breaks’ in the applicant’s criminal history and it has been some time since his last criminal offence involving violence, which occurred in January 2013. The applicant explained that between 2007 and 2011, he was working a lot and was “hardly ever home with Kelly” and that after the offence in 2013, he went to New Zealand for 10 months. The applicant also submits that he stopped drinking alcohol and using ice in 2012. However, the evidence demonstrates that the applicant has not been deterred in the past from re-offending. After the approximate 4-year break in offending between 2007 and 2011, the applicant has reoffended.
As for drug and alcohol use, the applicant accepts that drugs, particularly ice, and alcohol use have been the main contributing factors for his offending conduct. He explained that his drug use was consistent through the years 2006/2007 to 2012 and that his drug use was “quite a lot”. He accepted that he was addicted to ice. Additionally, the Courts have previously directed as part of his good behaviour bonds, that the applicant “obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation”. He claims that treatment and rehabilitation services have never been offered to him. The applicant has not sought or undergone any form of treatment to assist with his drug and alcohol addictions. Further, the applicant acknowledges that he has problems with his temper and that this was also a contributing factor to his criminal offending. He has not sought nor undertaken any treatment with this issue.
The applicant claims that he ceased drugs and alcohol because he wanted to make a better life for himself. He also stated that Kelly prompted him to stop drugs and that he has never relapsed or faced temptation since.
While the applicant claims to have abstained from alcohol and drug use since 2012, it is concerning that these issues remain professionally untreated. This is particularly significant given that these untreated issues are instrumental in the applicant’s past criminal offending.

The applicant has expressed limited insight and remorse into his criminal offending. I do note that he accepted that his conduct involving family violence would have had an impact on his son and stepson. He also stated that he regrets his actions, particularly those against Kelly when she was pregnant. However, when faced with the facts accepted by the Court in respect of his criminal offending in January 2013, the applicant stated that he “never touched” Kelly’s brother and disagreed that he could have killed him. He stated that he only held him in a head lock but let him go when Kelly started punching him. The applicant expressed that it was “unfair” that he was charged and convicted for the offences when the charges were dropped against Kelly. As for his most recent offence of drive while suspended, the applicant explained that he wasn’t aware his licence was suspended, as his employer at the time paid all his fines, through his salary.
The applicant claims that he now has a good relationship with his son and Kelly. Both the applicant and Kelly said that they communicate better and talk issues through. It is also submitted that the applicant’s current medical conditions are a factor reducing his likelihood of reoffending. Limited weight can be placed on this aspect as there is scarce medical evidence about his capacity nor his drug and alcohol rehabilitation as discussed above.
I note that the sentencing Magistrate in 2015 accepted an independent professional assessment of the probation officer that the applicant presented a low to medium risk of re-offending. The Magistrate stated “there is a real prospect he will rehabilitate, there is a real prospect he will not. Now it looks unclear, I find.” The applicant has since reoffended.
The applicant's repeated crimes of a violent nature are very serious and any likelihood that they may be repeated is unacceptable. The potential harm caused by further acts of criminal or other serious conduct committed by the applicant could involve significant harm to members of the Australian community.
This primary consideration significantly favours the exercise of the discretion to cancel the applicant’s visa.
Family Violence
Direction 99 provides that 'family violence' means violent, threatening, or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful. The definition also includes examples of behaviour that may constitute family violence; paragraph 4(1) of Direction 99.
The principles providing the framework within which decision-makers should approach their task of deciding whether a cancellation should be exercised provide that 'the inherent nature of certain conduct such as family violence … 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'; paragraph 5.2(6) of Direction 99. Direction 99 provides that acts of family violence, regardless of whether there is a conviction for an offence or sentence imposed, are viewed 'very seriously'; paragraph 8.1.1(1)(a)(iii) of Direction 99. Further, the primary consideration about family violence is relevant where the applicant has been convicted of an offence and/or there is information or evidence from independent and authoritative sources indicating that the applicant has been involved in the perpetration of family violence; paragraph 8.2(2)(a), 8.2(2)(b) of Direction 99.
The applicant's ex-partner Kelly and her brother are 'member of the person's family' for the purposes of paragraph 8.2 of Direction 99, which specifically defines 'member of the person’s family', for the purposes of the definition of family violence to include a person who has, or has had, an intimate personal relationship with the relevant person.
Instances of domestic related violence have been detailed in these reasons above and include the majority of the applicant’s criminal offending.
This primary consideration strongly favours the exercise of the discretion to cancel the applicant’s visa.
Strength, nature and duration of ties to Australia
Paragraph 8.3(4) of Direction 99 requires that, in assessing this consideration, decision-makers must have regard to:
a) the length of tie the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The applicant spent his formative years in New Zealand. He has resided in Australia from the age of 30 and began offending within a few years of his arrival in Australia. His positive contribution to Australia is limited. He has family links to Australian citizens or permanent residents, including his two sons, Kelly, grandchildren, extended family (cousins) and friends.
The applicant described his relationship with his sons. The applicant’s 15-year-old son, Jessie, resides with the applicant and his mother, Kelly. His other adult son, Jamie, is 28 years old, and has a partner and children. He currently lives in Queensland.
The evidence of the applicant is that he has a good relationship with Jessie. He claims that he purchased a 1979 Mercedes Benz years ago and has enjoyed rebuilding it with Jessie. The applicant said that the car will be Jessie’s inheritance but due to the applicant’s disabilities, the car is far from finished. At hearing, the applicant said Kelly and himself care for Jessie and that he occasionally makes dinner for him.
As for Jamie, the applicant said that he stays in contact with him occasionally by telephone. He said he has not seen him in a few years and last spoke to him before Christmas last year. There is no evidence about the applicant’s relationship with his grandchildren in Australia.
The death of the applicant’s stepson, Kelly’s son Khan, in January 2020 at the age of 14 was a traumatic event for the applicant, Kelly and Jessie. This is a significant emotional tie between the family, and I note that his remains are in Australia.
The applicant was gainfully employed in Australia until his medical condition (rheumatoid arthritis) prevented him from working in 2019. The applicant has claimed that in the past he has volunteered at “annual Wiatungi celebrations”.
This primary consideration favours against the discretion being exercised to cancel the applicant’s visa.
The best interests of minor children in Australia affected by the decision
Paragraph 8.4(1) of Direction 99 requires the Tribunal to decide whether the cancellation is, or is not, in the best interests of minor children in Australia affected by the decision.
The applicant’s son, Jessie, is 15 years old and resides with the applicant and his mother, Kelly. The applicant submits:
My youngest son is my best friend and he has told me that "he would be devastated if he lost me too.". My son doesn't open up to anyone but me as he suffers from deep depression and finds it difficult to express himself at times. I’m relieved that he has learned to open up and talks to me about his school days and asks for advice on things he struggling with.
As detailed above, the applicant has also spent time with Jessie rebuilding an old Mercedes and contributes to the usual care of Jessie.
At hearing, Kelly said Jessie does not “open up to anyone” and was starting to rebel. She said he would be devastated should the applicant be returned to New Zealand. Kelly said she would consider moving to New Zealand with Jessie, but she only recently found a new place to live and has unfinished legal matters she needs to attend to, namely the coronial inquest into the death of her son. Kelly and Jessie would however visit the applicant in New Zealand and speak to him on the telephone.
If the applicant were to depart Australia, Jessie would be cared for by his mother and could maintain contact with the applicant through video or telephone. It may also be possible for Jessie to visit the applicant in New Zealand as he did in 2013.
There is no evidence about the applicant’s relationship with his grandchildren in Australia nor evidence about how the applicant’s departure to New Zealand may affect them.
There is some evidence of the applicant being involved with his late stepson’s friends who are under the care of the Minister, one of which is currently 17 years of age. At hearing, the applicant said that “they come over every now and then” but this was more “Kelly’s thing”, and he had minimal involvement.
Overall, this primary consideration favours against the discretion being exercised to cancel the applicant’s visa.
The expectations of the Australian community
Paragraph 8.5 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
…
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The applicant’s criminal offending plainly does not meet the expectations of the Australian community that as a non-citizen he will obey the laws of this country. I am satisfied that the Australian community would expect that the applicant should not hold a visa. This primary consideration favours the exercise of the discretion to cancel the applicant’s visa.
Other Considerations
Other considerations are set out in Direction 99, at paragraph 9(1). The considerations that are relevant in this case are the extent of impediments if removed and impact on victims.
Extent of impediments if removed from Australia
Direction 99 provides, at paragraph 9.2, that:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
The applicant is a citizen of New Zealand and as such, the relevant country the applicant would be removed to is New Zealand. The applicant has siblings, adult children, and grandchildren and friends in New Zealand. He has a particularly close relationship with his daughter, Storm, with whom he is in regular contact. The applicant stayed with Storm and his grandchildren for 10 months in 2013 when he travelled to New Zealand. At hearing, the applicant said that should he be removed to New Zealand, he would likely stay with Storm.
The applicant suffers from a number of medical conditions. As detailed by Dr Wong in a letter dated 18 January 2024, the applicant suffers from rheumatoid arthritis, a pituitary tumour, chronic back pain, dental pain, and major depression. Dr Wong indicates that the applicant is currently undergoing treatment for these ailments which would be best managed if they continue to be treated in Australia.
The applicant has a treatment plan in Australia and has follow up appointments scheduled. These may be difficult to organise and arrange initially should the applicant return to New Zealand. In his evidence, the applicant explains difficulties he faces as a result of his medical conditions on a daily basis. Kelly has been the applicant’s carer and he relies on her to help him around the house and take her to appointments. Should the applicant return to New Zealand, he would need to find additional support for his daily needs resulting from his medical conditions. This would pose some difficulty for the applicant but there is no evidence that the applicant would not receive appropriate treatment for his ailments in New Zealand and in any event, the applicant would be entitled to any medical and social welfare support available to other New Zealand citizens.
I consider that this factor weighs against the discretion being exercised to cancel the applicant’s visa.
Impact on victims
There is no evidence on the impact of the Tribunal’s decision on the victims of the applicant’s offending other than his former partner, Kelly, who has indicated that she will suffer hardship if the applicant is removed from Australia. It is accepted that this factor weighs in the applicant’s favour.
Decision
The primary considerations of the protection of the Australian community, the expectations of the Australian community and Family Violence weigh strongly in favour of exercising the discretion under subsection 501(2) to cancel the applicant’s visa. I am not persuaded, that the considerations of the best interests of minor children in Australia, the applicant’s strength, nature, and duration of ties to Australia, the extent of impediments, and the impact on victims if removed, outweigh the other considerations.
The decision under review is affirmed.

73. I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate
Dated: 12 February 2024

Dates of hearing: 31 January 2024

Solicitor for the Applicant:
Ms W Milojkovic, Southwest Migration and Legal Services

Solicitor for the Respondent: Mr T Goodwin, Australian Government Solicitor

[2024] AATA 185

12 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Standing

Dates of hearing:	31 January 2024
Solicitor for the Applicant:	Ms W Milojkovic, Southwest Migration and Legal Services
Solicitor for the Respondent:	Mr T Goodwin, Australian Government Solicitor