Heaki and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 1107
•2 March 2023
Heaki and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1107 (2 March 2023)
Division:GENERAL DIVISION
File Number(s): 2022/10145
Re:Tongia Halisi Heaki
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:The Hon. Dennis Cowdroy AO KC, Deputy President
Date:2 March 2023
Place:Sydney
The decision under review is affirmed.
....................................[sgd]....................................
The Hon. Dennis Cowdroy AO KC, Deputy President
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – offending of a violent nature – prospects of rehabilitation – best interests of minor children – expectations of the Australian community – impediments to removal – links to the Australian community – strength, nature and duration of ties to Australia – decision under review affirmed
LEGISLATION
Crimes Act 1900 (Cth)
Crimes (Sentencing Procedure) Act 1999 (Cth)
Migration Act 1958 (Cth)
CASES
ASSISTANT MINISTER FOR IMMIGRATION AND BORDER PROTECTION V SPLENDIDO [2019] FCAFC 132
FALZON V MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2018] HCA 2
FYBR V MINISTER FOR HOME AFFAIRS [2019] FCAFC 185
LABI AND MINISTER FOR IMMIGRATION AND BORDER PROTECTION (MIGRATION) [2016] AATA 316
PGDX V MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIR [2021] FCA 1235
VIANE V MINISTER FOR IMMIGRATION AND BORDER PROTECTION [2018] FCAFC 116
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
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO KC, Deputy President
2 March 2023
The Applicant seeks review of a decision of a delegate of the Respondent (the Minister) made on 8 December 2022 (the decision under review) not to exercise the discretion under subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act) to revoke the original decision made under subsection 501(3A) of the Act on 18 August 2021 to cancel the Applicant’s Special Category (Temporary) (Class TY, Subclass 444) Visa (the visa).
The delegate of the Minister was satisfied that the Applicant did not pass the character test on the basis that he had a ‘substantial criminal record’ as a result of being sentenced to a term of imprisonment for 12 months or more and was serving a sentence of imprisonment on a full time basis in a custodial institution for an offence against a law of the Commonwealth, a State or Territory (subsection 501(3A) and paragraphs 501(6)(a) and 501(7)(c)).
On 13 September 2021, the Applicant sought revocation of the mandatory cancellation of the visa under subsection 501CA(4) of the Act.
On 8 December 2022, a delegate of the Minister decided not to revoke the decision under review on the ground that the power under subsection 501CA (4) of the Act to revoke the mandatory visa cancellation was not enlivened.
By application filed on 12 December 2022, the Applicant applied to the Tribunal for review of that decision.
RELEVANT LAW AND POLICY: DIRECTION NO. 90
Section 501CA of the Act applies if the Minister decides under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).
Paragraph 501(6)(a) of the Act provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7)(c) also provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made a written direction pursuant to section 499 of the Act to guide decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 90 or Direction No. 90).
The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. In particular, paragraph 5.2 of the Direction sets out a number of principles that the Tribunal has considered. It relevantly provides:
(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.
Part 2 of the Direction sets out primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be viewed as ‘secondary’ as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
The primary considerations (paragraph 8 of the Direction) are:
(a)protection of the Australian community from criminal or other serious conduct (Primary Consideration A);
(b)whether the conduct engaged in constituted family violence (Primary Consideration B);
(c)best interests of minor children in Australia (Primary Consideration C); and
(d)expectations of the Australian community (Primary Consideration D).
The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations include but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community: including the strength, nature and duration of ties to Australia and the impact on Australian business interests.
FACTS
The Applicant, who is 40 years of age, was born in New Zealand and is a citizen of New Zealand. He arrived in Australia in February 2018 and has not departed since that date.
EVIDENCE
Oral Evidence
The Tribunal heard oral evidence from the Applicant and from the following persons:
·Ms N (Applicant’s wife);
·Dr Kwok (psychologist);
·Mr D. Istanbouli (Accredited Mental Health Social Worker);
·Mr A (friend of Applicant); and
·Mrs DH (mother in law of Applicant).
Statements of Evidence
The Tribunal has been furnished with and has taken into consideration the following:
(a)statutory declarations of Applicant dated 13 February 2023;
(b)statutory declarations of Ms N (Applicant’s wife) dated 13 February 2013;
(c)letter dated 12 February 2018 addressed to the Applicant by his future employer (A) offering employment;
(d)statement of the Applicant addressed to the Minister dated 6 September 202;
(e)letter addressed to the Minister by Applicant’s wife dated 6 September 2021;
(f)letter from M.L. addressed to the Presiding Judge dated 8 September 2021 offering employment to the applicant as a part-time labourer if he were released from incarceration;
(g)letter by employer verifying the work history of the applicant dated 6 September 2021
(h)statement of Reverend L. T., Chaplain of Park Lee Correctional Centre addressed to the presiding judge dated 17 September 2020;
(i)letter addressed to the Minister written by AH and DH (parents-in-law of Applicant);
(j)statutory declarations of DH (mother of Applicant’s wife, N) dated 12 February 2023;
(k)letter addressed to the Minister by EH (Applicant’s sister-in-law), (undated);
(l)handwritten letters addressed to the Minister dated 10 September 2021 and 7 February 2023 by XH (son of Applicant);
(m)handwritten letters addressed to the Minister dated 10 September 2021 and an undated letter by ZH (daughter of Applicant);
(n)undated handwritten letter of KH (child of the Applicant) addressed to the Minister of Home Affairs dated 15 June 2022 by Applicant;
(o)handwritten letter addressed to the Minister of Home Affairs by AH;
(p)copy of letter of BH (undated) relating to the employment of Ms N;
(q)Social work report of MJ, Social Worker, Legal Aid NSW dated 15 September 2021;
(r)letters written by the Applicant to his children;
(s)handwritten letter (undated) from EP (sister-in-law of applicant);
(t)handwritten letter of AT (cousin of N) dated 7 February 2023;
(u)undated letter of M (wife of MA);
(v)undated letter of KP (KP’s wife is the Applicant’s sister-in-law: witness does not personally know the Applicant);
(w)undated letter of DG, Minister of Jehovah’s Witnesses;
(x)letter of AS dated 10 February 2023 (witness does not personally know the Applicant);
(y)undated letter of SG (member of church congregation);
(z)letter of BH dated 9 February 2023 (relates to N and not to Applicant);
(aa)undated handwritten letter of IMS (friend of family);
(bb)undated letter of MD (fellow worker of Applicant);
(cc)family photographs of children; and
(dd)letters written by Applicant’s children to the Applicant.
Medical Evidence
(ee)psychological report of Dr Emily Kwok dated 28 January 2023;
(ff)letters dated 8 April 2022; 9 June 2022; 23 June 2022, 25 October 2022 by Mr Istanbouli, Accredited Mental Health Social Worker relating to the psychological distress caused to the children of the applicant by virtue of his absence due to incarceration;
(gg)report of Christina Perez, clinical psychologist concerning Ms N dated 15 June 2022; and
(hh)letter of Christina Perez dated 9 September 2021.
APPLICANT’S CRIMINAL HISTORY
New Zealand
The Applicant has an extensive history of motor traffic offences, drug offences and domestic violence offences in New Zealand. The Applicant was convicted of nine offences between 2003 and 2013, two of which were for physical violence. The last occurred in 2013 after which the Applicant received a suspended sentence of six months. The record is as follows:
COURT RESULT DATE OFFENCE DATE OFFENCE DESCRIPTION RESULT Manukau DC
25/10/2013
10/08/2013
Male Assaults Female(Manually) (Family Violence)
Convicted and Sentenced: To Come Up For Sentence If Called Upon - 25/10/2013 - 6 Months
Manukau DC 14/08/2012 28/09/2009 Breach Of Community Work Convicted and Sentenced : Community Detention - 04/09/2014 - 4 Months/ Result of Community Based Sentence Review. Manukau DC 27/03/2009 27/09/2008 Breach Of Community Work Convicted and Discharged Manukau DC 28/03/2008 14/01/2008 Failure To Answer District Court Bail Convicted and Discharged Manukau DC 28/03/2008 18/07/2007 Sell/Give/Supply/Administer/D eal Ca Convicted and Sentenced : Community Detention - 04/09/2014 - 4 Months / Result of Community Based Sentence Review. Manukau DC 28/03/2008 18/07/2007 Possess For Supply Cannabis Plant Convicted and Sentenced : Community Work (SA) - 14/08/2012 - 120 Hours/ Cumulative on 07092015804 / Community Detention - 14/08/2012 - 4 Months/ Result of Community Based Sentence Review. Manukau DC 28/03/2008 06/07/2007 Receives Property (Under
$500)
Convicted and Sentenced : Community Work (SA) - 14/08/2012 - 120 Hours / Cumulative on 07092015804 / Community Detention - 14/08/2012 - 4 Months/ Result of Community Based Sentence Review. Manukau DC 28/03/2008 01/05/2007 Permit Premises/Motor Vehicle Used Convicted and Sentenced : Community Work (SA) - 14/08/2012 - 120 Hours / Cumulative on 07092015804 / Community Detention - 14/08/2012 - 4 Months/ Result of Community Based Sentence Review. Manukau DC 29/05/2003 11/02/2003 Common Assault(Crimes Act)Manually Convicted and Sentenced : Community Work (SA) - 29/05/2003 - 150 Hours TRAFFIC CONVICTION HISTORY
Mankaku DC
16/12/2003
23/08/2003
Operated A Vehicle Carelessly
Convicted and Sentenced : Fine - $600.00, Court Costs - $130.00
Australian Offences
Traffic Offences
On 2 July 2020 in New South Wales the Applicant was convicted of driving a motor vehicle while his licence was suspended. He was disqualified from driving for six months and fined $700. Other offences are as follows:
·a traffic infringement notice was issued for speeding on 2 September 2018;
·on 9 February 2019 the Applicant was apprehended and found to be driving while his licence was suspended;
·on 16 May 2019 a traffic infringement notice was issued to the Applicant for not wearing a seatbelt;
·on 22 November 2019 another infringement notice was issued for driving in a bus lane;
·on 5 February 2020 the Applicant was issued a traffic infringement for exceeding the speed limit in a school zone; and
·on 16 February 2020 a traffic infringement notice was issued for exceeding the speed limit and again was found to be driving whilst suspended due to excessive points.
District Court of New South Wales
On 2 July 2021 Judge Mahony SC, DCJ sentenced the Applicant for the charge of reckless grievous bodily harm in company for an offence that occurred on 26 April 2020. The maximum penalty for such offence was 14 years imprisonment and a standard non-parole period of five years imprisonment. This was heard along with a related offence of destroy or damage property of less than $2000. In the end he was sentenced to a term of imprisonment for four years and six months with a non-parole period of two years and six months.
The Remarks on Sentence record that the Applicant and the co-offender (his wife) carried out in an unprovoked attack upon a stranger. The attack was vicious. The Applicant was under the impression (without any foundation) that the victim had killed his friend. The victim was walking past the home of the Applicant when she was suddenly attacked from behind. The Applicant grabbed the back of the victim’s hair causing her immediate pain and part of her hair to be pulled out. She fell backwards, hitting her head on the concrete footpath. The assault was conducted in a violent manner, with a co-offender having in her possession a knife and hammer. The remarks state:
The offender then started to smash the victim’s place repeatedly into the window of a parked car by holding her hair. Whilst the victim tried to kick back with her legs, she could not stop him.
The victim sustained visible injuries to her face, hands and knees, a cut to her finger consistent with a knife blade pressing against it, bleeding lips, grazing, to left rib fractures, trauma to her teeth. The victim sustained mental and physical sequelae. The remarks continue:
The Crown submitted that the offender engaged in a deliberate unsolicited assault upon a victim which continued for around 10 minutes, during which period the victim blacked out on two occasions. A significant degree of force was applied on multiple occasions whilst the victim was screaming out for help and also that she did not know either offender. The offender had the greater role in the physical assault upon the victim although he was encouraged by the co-offender who presented him with both a knife and hammer during the attack, and incited him to kill the victim. The assault only ceased when the police arrived at which point the victim was between the offender’s legs.
The sentencing remarks accepted such submissions. The trial judge commented:
This was an attack carried out in a frenzied, manic state by the offender, unprovoked on a defenceless young woman in broad daylight on a public street. It was a terrifying ordeal for her, during which she thought she was going to die. She suffered numerous cuts and abrasions, fractures to two ribs and severe injuries to her teeth including a fracture to the enamel and dentine of the upper-left permanent central incisor, an injury requiring root canal therapy to Tooth 11 and requiring her to wear a splint to prevent further trauma to her front teeth. The long-term prognosis for those injuries is guarded due to the possibility of root resorption, extraction and further implant placement. The victim was hospitalised for six days and required significant ongoing assistance from her family.
The District Court heard evidence that the Applicant had consumed cannabis and ice (methamphetamine) prior to the attack. The attack was graphically recorded by video. It shows extreme violence inflicted upon the victim. It records the Applicant dragging the victim along the street by her hair with the victim screaming for help. There is evidence that simultaneously the Applicant’s wife who had a knife was calling out words the effect “kill her, kill her”.
When police searched the Applicant’s home following this the assault, they located some of the victim’s property such as her glasses and watch. The victim’s ring was found concealed in the underclothing of Ms N at the hospital. The statement of the female victim of the assault committed by the Applicant graphically reveals its impact upon her as follows:
It has been over one year since I was attacked. Since then, my life has changed significantly. This period has been the most difficult in my entire life. I have been living a terror that does not end. Every time I close my eyes, I must try my hardest not to be taken back to that horrible Sunday morning. But often, out of nowhere, the images come flooding back, often at night, but also during the day without the slightest warning. This is something that I have been dealing with from the beginning and it is something that I will have to continue fighting, I fear, for the rest of my life. I miss being able to sleep without having to constantly fight off the terrible memories that remain.
The images of terror and the feeling of having my teeth scraped in the concrete pavement come back to haunt me every time I look in the mirror and observe my cracked teeth. I can no longer take a bite off a sandwich - or anything, in fact - because my teeth are fragile, and they may break. The thought of not being able to bite an apple, or a croissant, or a piece of toast may seem quite trivial to someone, but it is a big deal to me.
I was proud of my teeth, I really liked them. As a dentist, I was proud to boast that I had 'perfect teeth'. I used to like my smile, but not anymore, that was taken away from me. These days, eating is often a struggle, because it floods my mind with terrible images. I have been taught coping mechanisms, but the images remain, all I can do is to live with them. I cannot let my guard down or they will flood my mind and it will be as if I were there again. I want this to stop, but it has not, and I fear that it never will.
I miss being able to walk to work on my own. I was an independent woman who never relied on anyone for anything. Now, someone from my family must take me to and from work, or walk with me to the train station. I cannot go on my own. It is something I no longer do. Leaving home for me is always a struggle. I must work, but if I could, I would never leave home. I do not feel safe anymore. Going to my yard is something I rarely do - certainly not alone. Again, I do not feel safe anymore.
I am plagued by anxiety and fear and there is not a single night that I am not terrorised by images and thoughts that take me back to that terrible Sunday morning. I have been told that this trauma may go away, eventually, and that, until then, I must cope. But I wish I did not have to cope. I am tired of coping. I wash that this terrible thing did not happen to me. Each day for me is a fight and it is exhausting.
I really want the panic attacks and the fear to end, but I am afraid that they will not. I am terrified that this is something I will have to live with for the rest of my life. I feel so sorry that my husband and my family have been subjected to this terrible ordeal.
There is a lot more that I could say, but I find talking about what happened to me extremely difficult.
ISSUES FOR DETERMINATION
The Tribunal may revoke the original decision if the Tribunal is satisfied that:
(a)the Applicant passes the character test as defined by s 501 of the Act (subparagraph 501CA(4)(b)(i)); or
(b)there is another reason why the original decision should be revoked (subparagraph 501CA(4)(b)(ii)).
The Applicant does not pass the character test because he has a substantial criminal record as defined by the Act. Therefore, the sole issue for determination by the Tribunal is whether there is another reason why the original decision should be revoked.
The Tribunal now turns to assess the primary considerations as relevant.
PRIMARY CONSIDERATIONS
Primary Consideration A: Protection of the Australian community from criminal or other serious conduct
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Under paragraph 8.1(1) of the Direction, it is stated that:
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.
Pursuant to paragraph 8.1(2), that consideration requires an assessment of the nature and seriousness of the Applicant’s conduct and the risk that the Applicant presents to the community.
Nature and Seriousness of the Conduct
The Tribunal has had regard to paragraph 8.1.1(1)(a) of the Direction. The crimes for which the Applicant was convicted were repeated offending.
The Tribunal notes significant matters relative to the consideration of the protection of the Australian community:
(a)the Applicant commenced offending within five years after his arrival in Australia and has engaged in offending involving actual violence towards a woman;
(b)such offending involved the use of drugs; and
(c)other than affectation by drugs, there is no excuse for the applicant’s unprovoked attack on the woman.
Risk to the Australian Community Should the Applicant Reoffend or Engage in Other Serious Conduct
The Tribunal has had regard to paragraph 8.1.2 of the Direction which requires the Tribunal to consider the seriousness of the Applicant’s conduct and the likelihood of further offending. In doing so the Tribunal notes that there is no satisfactory explanation for his conduct other than that he was drug affected. There is no evidence that the Applicant has engaged in any therapy which might reduce risk of further offending or lead to rehabilitation. Further, the Tribunal takes into consideration the history of violent conduct occurring in New Zealand. It is apparent that the serious offence which he committed in New South Wales is but another example of his violent conduct and that he has not rehabilitated himself since arriving in Australia. There is the likelihood of further offences being committed by him with possible serious consequences. These factors together render an unacceptable risk of the Applicant remaining in Australia as was considered in Assistant Commissioner forImmigration and Border Protection vSplendido [2019] FCAFC 132 at [77].
Finding on Primary Consideration A
Given the factors discussed above, the Tribunal finds that this consideration weighs against revocation of the Applicant’s visa cancellation.
Primary Consideration B: Family violence committed by the non-citizen
Paragraph 8.2(1) of the Direction provides that 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 are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 4(1) defines “family violence” to mean “violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.”
This primary consideration is relevant in circumstances where (paragraph 8.2(2)):
(a)a non-citizen has been convicted of an offence, found guilty of offence, or had charges proven howsoever described, that involve family violence (subparagraph 8.2(2)(a)); 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 has been afforded procedural fairness (subparagraph 8.2(2)(b)).
Paragraph 8.2(3) of the Direction also provides that, in considering the seriousness of 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 in increasing seriousness (subparagraph 8.2(3)(a));
(b)the cumulative effect of repeated acts of family violence (subparagraph 8.2(3)(b));
(c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (subparagraph 8.2(3)(c)):
(i)the extent to which the person accepts responsibility for their family violence related conduct (subparagraph 8.2(3)(c)(i));
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));
(iii)efforts to address factors which contributed to their conduct (sub paragraph 8.2(3)(c)(iii)); 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 (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (subparagraph 8.2(3)(d)).
Finding on Primary Consideration B
The Tribunal notes that the Applicant was convicted of offences of family violence in New Zealand. There is also evidence that the infant children have witnessed family violence as discussed in Primary Consideration C. Accordingly, this consideration weighs against revocation.
Primary Consideration C: Best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction provides that decision-makers must decide on whether revocation is, or is not, in the best interests of a child affected by the decision (where that child is, or would be, under 18 years old at the time of the decision).
New Zealand: The Applicant is the father of 6 children in New Zealand, all but two of whom are now adults. There is no evidence concerning these children, but it appears that two of them remain infants. The Applicant says he has contact with them, and states that until he became unemployed in 2020 he provided some financial maintenance for them.
Australia: In Australia the Applicant has three children who are infants namely XDH born in 2010; ZEH born on 25 January 2012 and KKTH born 24 September 2015.
The material establishes that the Applicant has not had care of the children since each has been removed from the custody of the Applicant and of his wife. An order was made in the Children’s Court of New South Wales in January 2021 transferring the responsibility of the children by a guardianship order to their maternal grandmother and maternal grandfather until the children reach 18 years of age. The summary records that the Applicant and his wife had engaged in drug induced psychosis, resulting in the Secretary of Community Services delegate assuming care and responsibility of the three children on 27 April 2020.
The letters written by the Applicant to his children and the notes written by the children to the applicant during his incarceration suggest a happy childhood bond between a parent and their children. It is not known what relationship would continue in view of the Guardianship order, but it might be inferred that the bond would continue between the Applicant and his children.
The Tribunal notes that the children “are experiencing a high level of separation anxiety and acute stress due to the ongoing for separation from their father”, as stated by a social worker, MJ.
The Tribunal also notes the evidence of Mr Istanbouli of Lilly Pilly Counselling that the “lack of ability to connect seems to be a major precipitating factor on their psychological distress, challenges and managing emotional overwhelm and dealing with overwhelming stress”.
In a summary dated 12 May 2020, Community Service recorded that the Service held protection concerns relating to the children’s exposure to the applicant and his wife’s drug use. The summary also records one of the children stating:
Sometimes mum goes harder for me and uses a spatula, slipper and hand. Dad uses a spatula, belt and umbrella but it doesn’t hurt.
One child responded that the Applicant curved the belt in half and struck up to 4 times which makes her feel sad and worried. When her father hit her with the belt, “she feels her body shaking”.
The report continues:
6. During an interview on 27 April 2020 the children disclosed to CW’s that Mr and Mrs H have fights often and this worries the children. Community Services have information to suggest that domestic violence between Mr and Mrs H has been an ongoing and persistent dynamic within their relationship.
7. Exposure to violence, as well as ongoing substance use by Mr and Mrs H are likely to have significant negative impact on the children’s well-being. Community services is of the opinion the parents will be unavailable to care for the children for a time and deemed the children would be at root risk of serious harm if they were to return to the care of their parents.
The Tribunal also notes that Community Services considered that restoration of the children was not a realistic possibility at the time of the report and that either parent would need to be living in the community with no pending criminal outcome and to demonstrate significant changes pertaining to their drug use and physical violence before the children could be returned to their care.
The Tribunal records the reports of Christina Perez as follows. One report pertains mainly to the Applicant’s wife but Ms Perez second report dated September 2021 asserts the Applicant’s wife is “highly attuned to the children”. Ms Perez states that in her opinion, the children are relying on the promise
given to them by their parents that this [the guardianship] was a short-term measure. If their father is deported, I am greatly concerned about the adverse impact on these children. They are already showing signs of distress during the temporary removal, and I anticipate they will deteriorate further should they lose their father permanently through deportation.
The grandmother of the Applicant’s children, Mrs DJH, testified that she and her husband, as guardians, experienced difficulty caring for the children. She said that she knew her daughter had a drug problem but was unaware of its extent.
The Applicant stated that he maintains contact regularly with his children by video, up to five times per week and that the children’s mother maintains contact. The Applicant hopes to gain custody of the children in the future and hopes this will be possible once he has completed sessions of courses designed to assist him such as anger management. The Applicant undertook to sessions of an anger management course in 2013 in New Zealand and has completed another course arranged by the Salvation Army in Australia. The Applicant states that until jailed, he consumed alcohol four to five times per week.
Finding on Primary Consideration C
The Tribunal acknowledges the important role parents play with their children, and the benefit of the presence of such parents to the welfare of the children. The Tribunal also notes the wishes of the children to be reunited with their parents. However, in this matter an ideal parent child relationship is not possible. The removal of the children from the care of the Applicant and of Mrs N has resulted from the conduct of the parents. The evidence satisfies the Tribunal that both have consumed drugs. The welfare of the children has been assumed indefinitely by others for the best interests of the children. The orders of the Children’s Court were no doubt determined as necessary for the best interests of the children This consideration weighs slightly in favour of revocation of the decision under review.
Primary Consideration D: Expectations of the Australian community
Paragraph 8.4(1) of the Direction provides that:
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 not to allow such a non- citizen to enter or remain in Australia.
Paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be 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;
(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;
(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.
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 (paragraph 8.4(3)).
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 (paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion and is ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J). That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 65, those principles are relevantly analogous in principle with respect to Direction 90.
It has further been held that the consideration is “in substance … adverse to any applicant”: see Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76]. Her Honour said, referring to the primary consideration:
It is a kind of deeming provision by the Minister about he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief.
Evidence of Dr Kwok
Dr Kwok provided oral evidence to the Tribunal, in addition to her written report. Dr Kwok has never physically met with the Applicant. Her opinions are based on an interview of approximately 50 minutes by video and further consultation of approximately 30 minutes.
Dr Kwok took a history from the Applicant. The Applicant stated that he commenced using marijuana when approximately 10 years of age but that he stopped using such drug sometime later. He indicated that drugs and alcohol had contributed to altercations with his then partner and problems with the law in New Zealand. The Applicant claimed he ceased associating with people who abuse substances and was neither using alcohol or drugs at the time he came to Australia. However he “spiralled” and he became unemployed in March 2020 and took amphetamines. He stated this happened “once” and was arrested the following day.
The Applicant had attended 12 sessions of anger management courses in New Zealand when he was 26 years old following problems in his domestic relationship. He was charged with domestic violence offences at that time. That relationship ended when he met his current wife.
Dr Kwok’s detailed report refers to his risk factors which would need to be addressed to reduce the applicant’s engagement in further criminal or other serious conduct. Dr Kwok stated as follows:
31 There are a few risk factors that would need to be addressed in order to reduce Mr Heaki’s engagement in further criminal or other serious conduct. These include:
• Poor coping
• Mood dysregulation (e.g. temper outbursts or irritable mood that is disproportionate to the situation)
• Depression and anxiety symptoms
• History of drug and alcohol use
• Inadequate prosocial leisure and recreation activities
32 There are also a few protective factors that reduce the likelihood of Mr Heaki’s reoffending, including:
• Mr Heaki indicated that he has been offered employment if he is permitted to return to the community. Mr Heaki has not engaged in serious offending in Australia when he was employed.
• He reported a currently intact and supportive marriage.
• He has support from extended family in Australia.
• His goal to apply for restoration of his children may be a motivator for him to refrain from antisocial behaviours.
33 On the balance of Mr Heaki’s criminogenic needs and protective factors, he presents as having a low risk for re-offending if he engages in intervention that targets his criminogenic needs and abstains from drug and alcohol use in the community. He presents as having a moderate risk for re-offending without appropriate intervention. Thus, his likelihood of re-offence will, in large part, be dependent on his responsiveness to treatment and ongoing engagement in prosocial lifestyle.
With respect to his children, Dr Kwok stated:
I note from the supporting materials that Mrs Heaki intends to stay in Australia with the three children if Mr Heaki is forced to return to New Zealand. The greatest impediment for Mr Heaki will, thus, be his separation from his wife and children if he is deported. It may also be harder for Mrs Heaki to seek restoration of the children without Mr Heaki’s support. For instance, Mrs Heaki will have less autonomy and time to look after the children if she becomes the sole provider for the family. It is common for parents to experience a sense of shame and guilt if they have not fulfilled their parental responsibility to protect and provide for their children. Mr Heaki will likely experience feelings of guilt and sadness for not meeting his obligations as a father if he is not permitted to stay in Australia. These emotions will be experienced against a backdrop of other risk factors such as his unemployment status (at least initially) and lack of connection with community support in New Zealand. Due to his poor coping and emotional dysregulation, Mr Heaki will be at greater risk of relapsing to drug and alcohol use in New Zealand than he will be in Australia.
Evidence of Mr Istanbouli
Mr Istanbuli, Counsellor provided short oral evidence in support of his reports dated 8 April 2022 and 9 June 2022. The evidence indicated that it was detrimental for the Applicant’s children to be separated from the parents.
Christina Perez
Christina Perez, clinical psychologist provided a report dated 15 June 2022 which relates to the Applicant’s wife (N). It records that N has expressed growing concern about her children’s mental health and reportedly stated that they are struggling with the inconsistent and significantly reduce contact with their father. She states that she is concerned for the long-term impacts of the situation on the mental health and functioning of the children.
Social work report
A social work report prepared by Ms MJ, Social Worker dated 15 September 2021 records that N considered that the Applicant and herself made a very poor choice by choosing to indulge in drugs and stated they would never intentionally harm any person. Ms MJ reported that N considered that she and her husband “had made a bad choice” and accepted cannabis during a home visit. She stated that she did not know that cannabis had been mixed with amphetamine and consequently she and her husband experienced a drug induced psychosis. They are now looking forward to the restoration of their children.
Ms MJ recorded that research examining the impact of forced separation on children has found a range of complex social, behavioural and psychological problems impacting upon children. Such can be both long-term trauma, physical health problems, acute traumatic stress reactions and impaired ability to overcome future trauma, hostile and aggressive behavioural responses, emotional withdrawal, anxiety and depression, poor school performance, developmental regression, poor self-concept and social stigma. Ms MJ considered that the deportation of the Applicant would disrupt their lives. She states that N informed her that she would not leave the children to join her husband in New Zealand if he were deported.
The Applicant’s serious offending has been directed at a woman, as has already been dealt with above. The level of criminality has shown an increase in seriousness since his initial offending in Australia.
Further, the police records refer to numerous prior traffic infringements in which the Applicant has been involved. Whilst such offences may appear to be not serious, the repeated and combined effect of them demonstrates a disregard for the Australian law: see MJNN and Minister for Home Affairs [2019] AATA 3205 at [54]-[55] (“MJNN”); Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [43]-[45]. In MJNN, Senior Member Evans stated:
The applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users “go to the essential safety of the community”.
The conclusion of Dr Kwok that the Applicant is at low risk of reoffending is heavily conditioned upon the Applicant responding to treatment and ceasing his drug and alcohol habits. The opinion of having a moderate risk of reoffending without appropriate intervention is indicative of the reality that there is a reasonable risk of reoffending.
The Tribunal notes the observations contained in a Sentencing Assessment Report dated 4 June 2021 which stated that the Applicant had been assessed at medium low risk of reoffending according to the Level of Service Inventory – Revised (LSI–R). The Tribunal notes that no conditions were recommended other than a supervision condition. The report concluded that Community Corrections would monitor the Applicant for any indicators of increased risk due to his Medium-Low risk of reoffending. Such evidence satisfies the Tribunal that because ongoing supervision was necessary, the Applicant is at risk of reoffending.
Credit
The Tribunal heard testimony that on the afternoon preceding the serious assault the applicant was offered “ice” and after five or six doses he ceased its use. He also said he had never consumed “ice” previously.
In contrast, the police records show on the day of the assault, two sealed plastic bags of methamphetamine (ice) and one sealed bag of cannabis were found in the bedroom of the Applicant’s house.
The Applicant told the Tribunal that he had no knowledge of how such drugs were in his home and denied knowledge of their presence.
The Tribunal finds that such evidence is not credible. The Applicant states that he had a “relapse preventative plan in place”. However no such plan was put to the Tribunal. The Tribunal considers that the Applicant is at risk of consuming drugs in the future and if so, more violent conduct could occur. The Applicant blamed his “downward spiral” namely his unemployment which led to his drug consumption. Such occurrence could repeat itself in the future with the consequence that the applicant, on the balance of probabilities, could resort to the use of drugs again.
Finding on Primary Consideration D
Dr Kwok’s report refers to the Applicant’s alcohol and drug abuse since she was in pre-teenage years. The Applicant blamed alcohol abuse for the failure of his first marriage which included incidents of domestic violence.
The Applicant’s wife testified that the applicant does not have a drinking problem; that she consumed marijuana regularly, usually weekly but on arrival in Australia such use ceased. Ms N denied that she and the Applicant consumed any drugs up to the time her husband was jailed. She said she never saw the applicant drink alcohol. The Applicant testified to this Tribunal that he consumed proximally seven bottles of beer on five occasions per week.
Ms N denied taking ice on the day before the assault and stated to the Tribunal that she remembered taking only marijuana. However the records of action taken against her by the police are not before the Tribunal.
Ms N stated to the Tribunal that neither she nor the applicant was drug takers before the commission of the assault. She said she could not explain the presence of two sealed bags containing methamphetamine and one sealed bag containing cannabis which was found by the police in the bedroom of their home.
In Labi and Minister of Immigration and Border Protection (Migration) [2016] AATA 316 at [60], McCabe DP said:
The Direction points out the Australian Community expects non-citizens will obey Australian laws while they remain in this country. But the Direction implicitly acknowledges the community is not completely intolerant of risk: rather, it will have regard to the nature of the character concerns or offences and make a reasonable judgment. In short, one can rely on the Australian community, when fully informed of the facts, to demonstrate some perspective and settle on an outcome that is proportionate.
In this case, the Applicant has a history of drugs, having been convicted in the Manuka District Court on 28th of March 2008 of possessing cannabis for supply, and being involved in assaults (convicted on 16 December 2003 and on 25 October 2013) and breach of a community work order (14th of August 2012). In Australia the Applicant was convicted of a motor traffic offence for which his licence was suspended yet he chose to drive a motor vehicle again whilst disqualified. Further, the Applicant has engaged in illicit drug taking.
The Tribunal finds that the Australian community’s expectations would weigh against revocation of the decision under review.
OTHER CONSIDERATIONS
The Tribunal now turns to assess the other considerations (paragraph 9 of the Direction) as relevant.
International Non-Refoulement Obligations
The Tribunal is required to consider international non-refoulment obligations as provided by paragraph 9.1.
The Tribunal considers that such consideration is neutral in respect of revocation, since there are no issues raised which would potentially breach Australia’s non-refoulment obligations.
Extent of Impediments to the Applicant if removed from Australia
Paragraph 9.2(1) of the Direction provides that 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 has resided in Australia for five years. There is no suggestion that he is not in good health, and there are no language barriers or cultural barriers which will operate against his return to New Zealand. The Applicant may face some impediment if returned to New Zealand whilst he re-establishes himself. However, the Applicant has many close family members residing in New Zealand including his father, mother, brother, three sisters and his six New Zealand children.
In the circumstances the Tribunal finds that this consideration weighs against revocation of the decision under review.
Links to the Australian Community
The Tribunal must have regard to the Direction at paragraphs 9.4.1 (strength, nature and durations of ties to Australia) to 9.4.2 (impact on Australian business interests).
Strength, Nature and Duration of Ties to Australia
Under paragraph 9.4.1 of the Direction:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has resided continuously in Australia since 2018. The Applicant has engaged in employment as a labourer on building sites, namely the Sydney Metro. The Applicant, by such works, has made a minimal positive contribution to the community (see subparagraph 9.4.1(2)(a)(ii) of Direction 90). The Tribunal notes that the Applicant has completed a TAFE course in work health and safety procedures in July 2020; that he has obtained certificates concerning works safety, communication in the workplace, control traffic with a stop/slow baton (13 of March 2018) and has obtained a certificate of attainment entitled “Prepare to Work Safely in the Construction Industry”. The Applicant has also completed a Positive Lifestyle Program conducted by the Salvation Army as evidenced by a certificate signed on 8 November 2020. These attainments should be of use in New Zealand.
The Tribunal considers the strength, nature and duration of the ties to Australia are such as to weigh only slightly against the revocation of the decision under review. The Applicant has only resided in Australia for a period of five years, yet has demonstrated little regard for Australian laws.
Mr A who operates a floor laying business in partnership had offered a part-time labouring position to the Applicant if he were released. However, Mr A testified to the Tribunal that he is currently recuperating from an injury and is not working and he could not now guarantee the offer of part-time employment to the Applicant. Mr A may be changing the nature of his work in the future by joining a partnership with his brother in a new concreting venture. He stated that he intended to offer a part-time employment to the Applicant after consultation with his brother if the venture was implemented.
Impact on victims
There is no evidence of any impact of the 501 decision on any victim in this matter.
Impact on Australian Business Interests
This consideration is not relevant in this matter is there is no evidence that the Applicant is involved in any business which would be detrimentally affected if the Applicant were removed.
Finding on links to the Australian community
References indicate that the Applicant has established friendships with his church community and work colleagues. Apart from these associations and his family members, there is no evidence of any strong links to the community. This consideration ultimately weighs minimally in favour of revocation of the decision under review.
OBSERVATIONS
In weighing the competing considerations and the weight to be given to all relevant considerations, the Tribunal considers that it is unable to find another reason to revoke the decision under review.
The Applicant does not satisfy the character test. Accordingly, the Tribunal must determine whether there is “another reason” why the original mandatory cancellation decision should be revoked. The evidentiary test is to be established on the balance of probabilities and the Full Court of the Federal Court of Australia in Viane v Minister for Immigration andBorder Protection [2018] FCAFC 116 per Colvin J at [64] stated relevantly:
It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carry sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens a statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
The Tribunal is aware that the task of its assessment is to essentially look forward. In NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1 at [192] Buchanan J said relevantly:
…the discretion to be exercised under section 501 is fundamentally forward, rather than backward, looking. It concerns the future, not the past.
The Applicant has already been punished for his criminal offending and the purpose of cancellation of the visa is not intended to be punishment, rather is made in the protection of the Australian community in Folau v Minister for Immigration and Border Protection [2016] FCA 1149 at [11], Pagone J stated:
It is well-established that the Minister cannot regard cancellation as a form of punishment for past events.
Rather, the Tribunal must determine whether the continued presence of the Applicant is contrary to the safety of the Australian community, as in Falzon v Minister for Immigration and Border Protection [2018] HCA 2 at [94] Nettle J said:
…powers of the kind conferred on the Minister by section 501 (3A) give effect to parliament’s right to rid the nation of persons who, in the judgement of the Parliament, have shown by their offending that their continued presence here would be opposed to the safety and welfare of the nation.
In summary making such assessment, the Tribunal must decide whether there is a “real or significant risk or possibility of harm to members of the Australian community”: see BHYK and Minister for Immigration and Citizenship [2010] AATA 662 at [53].
The Tribunal is required to weigh up all relevant factors both for and against revoking the cancellation. In doing so, the Tribunal notes the numerous references provided in support of the Applicant’s application. They speak of his generous personality, his work ethic, and his love for his family. The Tribunal does not find it necessary to individually repeat each of the references.
However, the Tribunal must also weigh up the seriousness of his offending. The seriousness cannot be determined without informative details of the actual circumstances involved: see Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61; (2016) 240 FCR 29 at [91]. In this instance, the Tribunal has been provided with the sentencing remarks of the serious offending which led to the Applicant’s prison sentence and the circumstances of the seriousness of the offending to which the Applicant pleaded guilty.
For the above reasons, the Tribunal is satisfied that the Applicant’s continued presence would be opposed to the safety of the welfare and of the nation. The Applicant has resided in Australia for only five years. Yet in that time, his driving record reveals a disregard for the Australian law and he has also shown to be a consumer of illicit drugs. The Applicant, based upon his New Zealand criminal record, and his Australian record, has a tendency to a violent disposition which has included violence against women.
Whilst the Tribunal is mindful of the fact that his deportation will deprive the children of the presence of their father, he has shown that he is not fit to have custody of the children and accordingly the optimum relationship between parent and children cannot be maintained.
The power to grant revocation is dependent upon a finding that the Applicant does not pose a risk to the Australian community. The Tribunal is not so satisfied.
Conclusion
Primary Considerations A, B and D weigh against revocation. Primary Consideration C weighs slightly in favour. Regarding the secondary considerations, the Tribunal finds that impediments to the Applicant if removed and his links to the Australian community weigh minimally in favour of revocation. The considerations in totality weigh against revocation and in these circumstances, the Tribunal is unable to conclude that there is another reason why the original decision to cancel the Applicant’s visa should be revoked.
DECISION
The decision under review is affirmed.
I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy, AO QC
..................................[sgd]......................................
Associate
Dated: 2 March 2023
Date(s) of hearing:
16 February 2023
Solicitors for the Applicant:
Ms M Mamarot, South West Migration and Legal Services
Solicitors for the Respondent:
Mr H McLaurin, MinterEllison
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