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

Ihaia and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 242 (25 January 2024)
Division:GENERAL DIVISION
File Number(s): 2023/8271
Re:Te Ngo Hamira Mason Ihaia
APPLICANT

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

DECISION
Tribunal:Senior Member Dr N A Manetta
Date:25 January 2024
Date of written reasons: 26 February 2024
Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.
...............[sgnd].........................................................

Senior Member Dr N A Manetta
CATCHWORDS
MIGRATION – mandatory cancellation of visa – whether ‘another reason’ for revocation of cancellation decision – Direction 99 – conviction of grievous bodily harm – offence extremely serious – trend of increasing seriousness – risk of recidivism assessed as low tending towards medium –– alcohol and drug misuse – instances of family violence and other antisocial conduct – interests of minor children weigh strongly in applicant’s favour – decision set aside and revocation of cancellation decision substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9
FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)

REASONS FOR DECISION
Senior Member Dr N A Manetta
26 February 2024

After I delivered my decision with oral reasons, I received a request for written reasons, which I now publish.[1] These are the reasons I read out to the parties with minor amendments.
[1] These reasons contain certain standard paragraphs, especially [4] and [35].
This is an application by Mr Te Ngo Ihaia seeking a review of a decision of the respondent’s delegate dated 2 November 2023.[2] By this decision, the delegate declined to revoke the cancellation of Mr Ihaia’s visa, which had taken place earlier under section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). The visa was cancelled after Mr Ihaia was convicted of serious offences involving assault, was sentenced to a term of imprisonment of at least 12 months, and was required to serve part of that term in jail on a full-time basis.
[2] The delegate’s statement of reasons appears at Ex R1, 16ff.
Mr Ihaia sought a timely internal review of the mandatory cancellation of his visa. The internal-review delegate tasked with conducting that review had two questions to answer under section 501(CA)(4)(b) of the Act. The first was whether Mr Ihaia passed the so-called ‘character test’ under section 501 of the Act. It is clear that Mr Ihaia could not pass the test given his lengthy prison sentence.[3] The delegate’s conclusion in this regard was clearly correct. The second question was whether there was ‘another reason’ for the cancellation decision to be revoked. In this regard, the internal-review delegate was required to apply Direction no 99 issued under section 499 of the Act (‘the Direction’).[4] Having weighed the various considerations required to be addressed under the Direction, the delegate concluded that the cancellation of the visa should remain in place. The delegate then formally concluded that his or her jurisdiction to revoke the cancellation did not arise, and the delegate did not take the action requested by Mr Ihaia.
[3] See s 501(6)(a) and (7)(c) of the Act.
[4] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).
TRIBUNAL’S TASK
Hearing the matter afresh on the evidence adduced before me, I must address the same two questions. I have already indicated that the delegate correctly answered the first question. The second question was the only one of substance before me, and, like the delegate, I must apply the Direction. I note that in exercising its review function in these matters, the Tribunal conducts a hearing on the merits, reaching the correct or preferable decision on the evidence before it.[5] It hears oral evidence and submissions, receives written documents and written submissions, makes findings of fact, and draws its own conclusions. The Tribunal does not merely review the delegate’s decision for error. This manner of proceeding implies that I may affirm the decision under review, notwithstanding the presence of an error in the delegate’s reasons, if that is the correct or preferable decision on the evidence before me. Equally, I may set aside the decision under review, notwithstanding the absence of any discernible error in the delegate’s reasons, if that is the correct or preferable decision on the evidence.
[5] See, for example, Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51].
At the hearing before me, Mr Ihaia represented himself; Ms Kelly appeared for the respondent. I acknowledge Ms Kelly’s assistance.
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and to substitute a decision that the cancellation of the applicant’s visa be revoked. I now set out the background facts and my reasons for this conclusion.
BACKGROUND FACTS
Mr Ihaia is 38 years old. He was born in New Zealand and remains a citizen of that country. His mother is alive and living in Australia, but his father died in late 2016. Mr Ihaia’s parents had four children in all (including Mr Ihaia). Mr Ihaia has two older siblings and one younger one. Unfortunately, Mr Ihaia’s parents separated in 1990, when he was just five years of age. At this point, two of the children went to live with Mr Ihaia’s mother, and two with the father (including Mr Ihaia). Mr Ihaia said his relationship with his father was quite good ‘on and off’. His father did not re-partner, but his mother did.
Mr Ihaia described himself in his evidence to me as ‘quite a shy kid and withdrawn’. He would visit his mother on weekends until he was about eleven years of age, when he moved in with her full-time as he had missed her, and as his father was often busy at work. She was living at that time in Auckland. He moved in with her, her new partner, and two siblings plus a stepbrother.
Mr Ihaia said that he found the move to Auckland difficult at first because of a lack of friends, but overall he was generally satisfied there. He attended school there and was a very good student, he said. Things were going well enough, he said, until he was suspended from school as he had become involved with gangs.
His stepfather, whom he described as a ‘steel fixer’ (that is, a person who places reinforcing rods in concrete), had an opportunity to work in Australia, and the family emigrated to Australia in January 2000, when Mr Ihaia was 14. The family settled in Perth. Mr Ihaia had mixed feelings about the move. On the one hand, he found the prospect daunting because he would have to leave his biological father in New Zealand (although his father was clear that Mr Ihaia ought to move). On the other hand, he was quite excited about the prospect of life in a new country. These feelings appear quite normal.
When the family moved to Australia in 2000, Mr Ihaia attended Hamilton Senior High School and joined the Year 10 class. He described his living arrangements as ‘very good’ as the family was renting a comfortable house with a pool and sauna. He made friends at school and liked it, he said. All in all, things were going well for Mr Ihaia at this stage of his life, so far as I can see.
He soon found himself suspended from school on account of his drinking and truancy. He had begun binge-drinking on weekends, he said. He left Hamilton High School and passed Year 10 at a different institution the following year, in 2001. Mr Ihaia then began Year 11 whilst also working although he did not finish the academic year. He first worked as a trolley collector in a supermarket and then with his mother at a chicken-processing plant.
In 2002, he also began working with his stepfather as a steel fixer. He was not suited to the work, he said; and, as he was not as efficient as the others, he left. At this time he was regularly using marijuana and drinking to excess. After leaving the construction industry, Mr Ihaia started an apprenticeship as a cabinetmaker but this lasted only six months: it was not work he liked. He was unemployed for six months and then ‘worked for the dole’ for a further six months after that.
At the age of 18 or 19, he left home to live with his partner, Ms Rhiannon Phillips. They moved into a flat. She was working at the time, and he was doing casual work through recruitment agencies for approximately four days a week. In 2006, their first child, Jayda, was born. She will turn 18 this September. Mr Ihaia was working for the City of Fremantle at the time of her birth. He was employed in their waste management department as ‘a runner’ (that is, a person who manually retrieves bins for emptying into the garbage truck). He worked there for two years as a casual but had regular hours. The work was well paid, he said. He and Ms Phillips had enough to live on, with something left over for entertainment. Soon after Jayda’s birth, the City of Fremantle helped Mr Ihaia to secure his truck-driver’s licence, and from March 2007 onwards, he drove the garbage trucks. He was full-time at this stage, and he held this position for some nine-and-a-half years.
Mr Ihaia said things were going very well for him at this point in his life, and that appears to be the case. In June 2008, his second child, Mason, was born. Soon after Mason’s birth, however, Mr Ihaia’s drinking escalated. The couple’s relationship began to founder. It was affected by his excessive drinking and also by his infidelity. In particular, he began to drink too much on most days of the week. Mr Ihaia gave evidence, which I accept, that he had begun binge-drinking from about the age of 14 on weekends. It was worse than that in 2008, he said. In 2016, his partner persuaded him to seek counselling, and he did so. He did stop drinking for a while, but relapsed. In late 2016, his partner and their two children left him. At around this time as well, Mr Ihaia’s father died, and he was feeling particularly low. There was a definite end to the relationship between Mr Ihaia and Ms Phillips in early 2017. He maintains contact with her, however, and contributes to the children’s financial welfare, or at least he did so until his incarceration.
I note that Mr Ihaia had also developed a dependence on methylamphetamine or ‘ice’. This prevented him from seeing his children for some time. But he now speaks with his children regularly – he said every day – from the detention centre.
In 2019, Mr Ihaia started a relationship with a person he had known for many years, Ms Rebecca Rohrlach. That relationship bore them a son, Drew, who was born in May 2020. The relationship ended once Mr Ihaia entered jail; but for the first few months of Drew’s life, Mr Ihaia spent time with his newborn son. Mr Ihaia gave evidence that he speaks with Drew every day and has a video call at least once a week. I do not doubt that there is some contact, but I am sceptical of the stated frequency.
Mr Ihaia gave evidence that both Ms Phillips and Ms Rohrlach are single at the present time. Mr Ihaia also gave evidence that he has contributed to the financial upkeep of his children from Ms Phillips, paying $250 per week until 2020. I accept this evidence.
Returning to Mr Ihaia’s work history, I note that he lost his job with the City of Fremantle in 2016 when he tested positive for the presence of ice. He then obtained work as a “fly-in-fly-out” worker in the Pilbarra Region of Western Australia. He was there for some five months and it was good work, he said. That job ended, he said, because his then former partner, Ms Phillips, was dissatisfied with his “fly-in-fly-out” lifestyle and complained that he was not helping out more with the children. He obtained work with the City of Perth as a driver and held this job until he was arrested.
Mr Ihaia’s criminal record as an adult was before me.[6] I was also referred to his juvenile criminal record. I have taken it into account, but it has not proved a “tipping-point” in my deliberations, and I need not consider it further.
[6] Ex R1, 53-54.
In 2004, Mr Ihaia was found guilty of disorderly conduct. He was fined $100 in the Fremantle Court of Petty Sessions. I do not think anything much turns on that conviction. It is now 20 years old.
On 30 January 2004, Mr Ihaia was convicted of assault occasioning bodily harm. He received a twelve-month community-based order requiring 100 hours of community work. Again, this conviction is 20 years old, and although it involves an assault occasioning bodily harm, the significance I attach to the conviction is properly tempered by its age.
On 3 August 2010, Mr Ihaia was found guilty of two offences involving disorderly conduct. He was disorderly in public and was also disorderly in a police station. These charges were heard by the Fremantle Magistrates Court. His disorderly behaviour in a public place attracted a fine of $600 while the disorderly behaviour in a police station attracted a fine of $300. These are relatively old offences and they attracted fines only. I note that there was a period of some six years separating these convictions from the earlier ones to which I have referred.
Both ‘disorderly conduct’ offences charges were the subject of a statement of material facts.[7] I accept the reliability of the statements despite Mr Ihaia’s denials. Mr Ihaia was clearly drunk or otherwise under the influence of a drug in the Fremantle Market Place on the night in question. The statement expressly records that he was intoxicated. He was abusive towards a homeless woman and also challenged various males in the vicinity to a fight. He was wrestling with a group of males when police arrived. He was abusive towards the police when arrested. He began kicking the van door where he was locked up inside and also kicked the door of the padded cell in which he was subsequently detained, all the while yelling obscenities. I note the offending occurred on 18 December 2009 and is, therefore, 13 years old.
[7] Ex R2, 23-24.
On 13 January 2021, Mr Ihaia was convicted of stealing. He was fined $200. The theft related to ten Jack Daniels premixed drink cans on 11 January 2020 from a retail outlet. The offending appears to be related to Mr Ihaia’s excessive drinking.
Mr Ihaia was convicted of two very serious offences in the District Court of Western Australia sitting in Perth on 7 April 2021 in relation to events that had occurred on 14 July 2018. The two offences involved unlawful wounding and the infliction of grievous bodily harm.
The sentencing remarks of the court were before me.[8] I accept them and rely on them. Mr Ihaia was attending a birthday party, as was the victim. The victim is described in the remarks as a ‘small, vulnerable man’.[9] Mr Ihaia left the party but decided to return to collect another person, Ms Slater. Ms Slater was sitting with the victim in his car when Mr Ihaia returned. When Mr Ihaia found out that Ms Slater was with the victim, Mr Ihaia became ‘angry at her’ according to the sentencing remarks.[10]
[8] Ex R1, 55ff.
[9] Ibid, 57.
[10] Ibid (Emphasis added).
Mr Ihaia approached the vehicle and told the victim to get out of the car. The victim asked whether everything was all right and was told again to get out of the car. The victim opened the car door and as he emerged from the vehicle, Mr Ihaia struck him in the forehead with a full bottle of spirits. The victim fell to the ground. He was then kicked in the front and back more than twice in what the court described as a ‘short but sustained’ attack.[11]
[11] Ibid.
The victim suffered numerous injuries, including a swollen left cheek and deep lacerations to his nasal bridge and right forehead. As a result of the attack, the victim also had a perforated small bowel that required emergency surgery. The Court noted that this injury was ‘potentially life-threatening’[12] because of the bleeding. The violence leading to the facial lacerations constituted the first count charged, while the violence leading to the perforated bowel constituted the second count. The victim suffered emotional and psychological injuries, felt paranoid, and developed a post-traumatic stress disorder. He was found to have suffered financially as well. The Court described the effect upon his life as ‘enormous’.[13]
[12] Ibid, 58.
[13] Ibid.
The Court held that the unlawful wounding was aggravated by the use of a weapon (namely, the bottle). The assault was described as senseless and without any justification or cause.
So far as the second count is concerned, which involved the ‘grievous bodily harm’ charge, the Court returned to the fact that the injury was potentially life-threatening and required surgery. There was a physical recovery, but there were ongoing psychological and emotional scars. It was an offence that fell within the mid-range of seriousness so far as the nature of the harm was concerned. The Court turned to a second factor of relevance (namely, the act which caused the injury). The Court noted that the multiple kicks were inflicted when the victim was already incapable of resistance. The Court also considered the background to, and the circumstances of, the offending. Here the Court found the attack was both deliberate and senseless and that it was carried out without any provocation or warning. It was also described as cowardly, and this factor placed the conduct towards the upper end of the scale.[14]
[14] Ibid, 60.
Before applying the ‘totality principle’, the Court found that on count 1, the appropriate sentence was 18 months. In relation to count 2, which involved the violence leading to the perforated bowel, the appropriate sentence was three-and-a-half years.
So as to reflect properly the overall criminality of the offending, The Court ordered a reduction in respect of count 1 (18 months’ imprisonment reduced to 12 months), but it was to be served cumulatively upon count 2. The total effective sentence was, therefore, four-and-a-half years’ imprisonment.
The Court declared Mr Ihaia eligible for parole. He was required to serve two-and-a-half years of his total sentence. The sentence was also backdated to 11 August 2020, making Mr Ihaia first eligible for parole in February 2023. A lifetime restraining order in respect of the victim was also imposed.
REASONS
Considerations arising under the Direction
I now turn to the Direction. In FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790, I made certain prefatory remarks that I
now repeat:
[30] The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
[31] Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (6). I set out some of the salient features of these principles.
[32] First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. The level of tolerance will rise with the length of time non-citizens have spent in the Australian community, particularly in their formative years. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence and other types of specified conduct is so serious that even strong countervailing considerations may be insufficient, and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
[33] Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight ‘generally’ to primary considerations over other considerations.

I now turn to apply the Direction. The first primary consideration I must consider is the protection of the Australian community. Paragraph 8.1(1) requires decision-makers to 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. Decision-makers need to have particular regard to the principle that 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. I bear this principle in mind.
By paragraph 8.1(2), I must have regard to the nature and seriousness of the non-citizen’s conduct to date and the risks to the Australian community should the non-citizen commit further offences or engage in other serious misconduct. I must have regard to the matters set out in paragraphs (a) to (h).
I must regard violent crimes as very serious under paragraph (a). Most obviously, the two counts of which Mr Ihaia was convicted by the District Court of Western Australia are extremely serious. As was made clear by the Court, the assault was in no way justified: to the contrary, it was wanton and brutal. It was sustained as well. The victim was substantially disabled by the blow to the forehead. But Mr Ihaia did not stop there. He further attacked his victim with multiple kicks.
It is not clear from the sentencing remarks that the Court found that Mr Ihaia knew his victim was particularly vulnerable. That seems to me to be largely irrelevant to my review, however, because an assailant who viciously attacks a victim must reckon with the possibility that the victim may have a special susceptibility to injury. Furthermore, the blows were so vicious that they caused life-threatening injuries and this too must be taken to be within Mr Ihaia’s contemplation; namely, that his assault might leave the victim seriously injured or even dead. Finally, the victim had become vulnerable as a result of the blow to the head if for no other reason. The kicks were particularly dangerous given that earlier blow. All in all, Mr Ihaia’s offending was extremely serious.
I must also have regard to the assault, which resulted in a conviction in 2004. This involved violent behaviour too. The disorderly conduct in public was also violent in part. Obviously enough, however, the most recent offending is particularly serious.
I need also to have regard to certain instances of family violence. These have not been charged, but that is irrelevant under the Direction, as paragraph 8.1.1(1)(a)(iii) makes clear. The respondent asked me to take account of the three reported instances of family violence, but I was not asked to find that more than these three instances occurred. These three instances are recorded and described in the respondent’s Statement of Facts, Issues, and Contentions.[15] One instance occurred in 2007 when the applicant had an argument with his then partner Ms Phillips and threw his phone at the wall. The record shows that Ms Phillips was a little frightened as she had a baby with her (Jayda).[16] Neither she nor the baby was assaulted. The record shows that the victim was not concerned for either her own welfare or that of the baby: she was just ‘a little scared’ at the time.
[15] Ex R3, 13 [38].
[16] Ex R2, 38.
The second incident took place almost ten years later. Again it concerns an act at Ms Phillips’ domestic premises. The event concerns events on Christmas Day 2016. Mr Ihaia, Ms Phillips, and their two children had been at a family event. They left the event by car but an argument ensued between the couple, and Ms Phillips told Mr Ihaia to leave the car. She drove on while he walked back to the house. At about 9.00 pm, Mr Ihaia arrived at the house but Ms Phillips refused to open the door to let him in. He became aggressive and started to kick and bang on the front door. She then phoned the police for assistance.
The police record verifies that the officers who attended observed the screen from the fly-wire door lying in the front yard and also observed new damage to the plaster around the front door as if the front door had been hit forcefully.[17] Neither party wished to say how it happened. Ms Phillips simply stated that she wanted Mr Ihaia to leave the premises until she had had the opportunity to depart. The police issued a 72-hour protection order. Ms Phillips is recorded as being frightened.
[17] Ibid, 41.
The third instance dates from October 2020. Mr Ihaia was on bail awaiting trial in the District Court in respect of the two counts of violence which I have described in some detail above. The police report was before me.[18] It involved Mr Ihaia’s second partner, Ms Rohrlach. They are recorded as being separated at this time. The report notes there are no other reported family-violence incidents between these parties. On Monday, 5 October 2020 Mr Ihaia arrived at her house. On her refusal to admit him, he became angry and upset and used an object to smash the driver’s side window of her car. The police report indicates that Ms Rohrlach did not seem bothered about what had occurred and had only called police because she was encouraged to do so by Mr Ihaia’s mother, although she is also reported as having been frightened.[19]
[18] Ibid, 33.
[19] Ibid, 33 and 34.
Each of these incidents constitutes aggressive and threatening behaviour. None of them involved a physical assault upon the victims as such but they did involve violent behaviour, and that of itself can be very intimidating for a victim. The most recent instance of family violence is of some particular concern because it involved a demand to enter premises followed by the wanton destruction of property in a violent way.
I take this violence into account under this part of the Direction. I bear in mind also that stealing and the destruction of property are antisocial acts and that all owners of property have the right to expect to enjoy their property.
I must have regard to the sentences imposed with the exception of crimes against women or children and acts of family violence.[20] The most recent sentence was four-and-a-half years long in aggregate. That length highlights the gravity of the offending. There has been some frequency[21] in Mr Ihaia’s record although it must also be said in fairness that there are large amounts of time when he did not have a criminal conviction recorded against his name.
[20] Paragraph 8.1.1(1)(c) of the Direction.
[21] See paragraph 8.1.1(1)(d) of the Direction.
There is, in my opinion, a trend of increasing seriousness.[22] The most recent offending represented a very serious escalation because Mr Ihaia’s behaviour endangered life. I also take into account the cumulative effect of Mr Ihaia’s repeated offending.[23]
[22] Ibid.
[23] See paragraph 8.1.1(1)(e) of the Direction.
I turn now to consider the risk to the Australian community should Mr Ihaia commit further offences or engage in other serious conduct. By paragraph 8.1.2(1), decision-makers, when considering the need to protect the Australian community from harm, should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, may be so serious that any risk of repetition may be unacceptable. I acknowledge this principle, and I expressly acknowledge its force in circumstances where an applicant has engaged in physical violence that has resulted in life-threatening injuries.
In assessing risk, I am to have regard to certain matters ‘cumulatively’; namely, the nature of harm to individuals or the Australian community should Mr Ihaia engage in further criminal or other serious conduct and the likelihood of his so doing taking into account the matters that appear in paragraph 8.1.2(2)(b)(i) and (ii).
The harm to individuals or the Australian community could be extreme, on the assumption that Mr Ihaia reoffended in a violent way,. It is true that Mr Ihaia did not intend to kill his victim but he intended to do him serious harm. An assailant engaging in a vicious assault may inflict a most serious injury (perhaps leading to death) even though there is no intention to do so. It goes without saying that a victim may be unlucky. It remains within the appreciable scope of risk that a person who is struck with a heavy object and then kicked on the ground may suffer grievously. In this case the injury proved life-threatening. The fact that Mr Ihaia committed these assaults for no good reason and whilst he was intoxicated, or under the influence of ice, only serves to aggravate my estimation of risk.
I should say that I do not accept Mr Ihaia’s explanation to me that he thought he was intervening to protect Ms Slater. First, the sentencing remarks record that Mr Ihaia had a very poor recollection of events because he was intoxicated; secondly, no such explanation was accepted by the Court; and, thirdly, the violent assault consisted of two separate attacks. On no view of the matter can it be said that the second stage of kicking the victim while he was prostrate reflected a desire on Mr Ihaia’s part to intervene to protect Ms Slater.
I think that if the domestic violence were to be repeated, it would intimidate and frighten a female partner.
Theft and the destruction of property are significant problems in Australia. If they were to be repeated, there would be both inconvenience and intimidation of victims.
I must have regard to the likelihood of Mr Ihaia engaging in further misconduct. This is hard to assess. First, I do not believe that Mr Ihaia has any genuine remorse in respect of his victims. His submissions in relation to the victim of the assault that saw him jailed led me to doubt that he has experienced any genuine remorse. He questioned whether the kidney transplant had left his victim truly vulnerable. He openly doubted in certain written submissions[24] that the victim would have suffered emotional or psychological injuries. This latter submission caused me great concern. Mr Ihaia queried whether there was any evidence indicating emotional or psychological injuries had been suffered by his victim. This question was posed in a context where Mr Ihaia was aware of the serious physical effect of the injuries upon his victim. He openly questioned why his attack should have led to the infliction of psychological injury in the absence of substantiating evidence.
[24] Ex A5.
I also found the submission disputing that his offending was ‘very serious’ for the purposes of the Direction surprising. Self-evidently, any reasonable member of the community would regard an assault of this nature as very serious.
All in all, there was little that Mr Ihaia put to me that persuaded me of his genuine remorse in the sense of an acceptance of his moral culpability. I did not regard his evidence in this regard as persuasive. To the contrary, I think he demonstrated a substantial lack of moral insight.
Under the Direction, I am to focus on risk, not remorse, however. I am also to have regard to the expert information before me. That includes a psychological report for the Prisoners Review Board dated 21 April 2023.[25] This report suggest Mr Ihaia constituted a low risk of recidivism, but an increased risk was identified should there be any return to alcohol or other substance misuse. The respondent did not challenge this estimation.
[25] Ex R2, 160ff.
I accept that there would be protective factors in place if Mr Ihaia returned to the community. First, Mr Ihaia well understands the risk he would face should he re-offend. He would face jail and then deportation. Having come to this Tribunal on one occasion, he could scarcely imagine that he would receive any further leniency. Moreover, he has a firm offer of employment[26] and a further offer of other employment from a friend who values his computer skills and who gave evidence before the Tribunal, Mr Prosser. He would also live with his mother, Ms Kartene, on release. These are important stabilising factors.
[26] Ex R1, 141.
I am not persuaded, however, that Mr Ihaia’s offending has much to do with his experiences of anxiety or depression. The observation in the psychologist’s report that ‘Mr Ihaia presents as one who has long struggled with social sensitivity, self-consciousness, potential anxiety around others, and a restricted and passive communication style, which may aggravate frustration and a potential for resentment or anger’,[27] is not linked persuasively, in my opinion, to the violent assault that saw him jailed. It is probably more accurate to say simply that Mr Ihaia, when drunk or under the influence of illicit substances, has shown himself to be very unpredictable. He is not alone in that regard.
[27] Ex R2, 167.
That said, I accept that Mr Ihaia has not consumed alcohol or drugs for some time. I accept that he is genuinely determined not to recommence binge-drinking and to avoid ice. He appreciates how it has affected his own life, even if he lacks remorse for the victim of his assault. I note the Court recorded[28] that it was satisfied of his work ethic and that he had a long history of working consistently. This does augur well for Mr Ihaia. But it is equally clear that any return to alcohol at all risks Mr Ihaia descending the same destructive path he began at the age of 14.
[28] Ex R1, 58.
All in all, I would assess the risk of recidivism as low, but tending towards medium given the uncertainty around Mr Ihaia’s capacity to remain abstinent from alcohol and drugs.
I note in this regard that Mr Ihaia presently has no female partner, and, on the evidence before me, he does not pose more than a low risk towards his previous partners. The risk he would pose to any future partner would depend on alcohol or drug consumption. But I note that the violence on record has not extended to physical violence against a partner’s person.
I reiterate that this risk assessment must be considered ‘cumulatively’; that is, in conjunction with the nature of harm to the Australian community that Mr Ihaia has inflicted.
I am required by paragraph 8.2 to have regard to family violence committed by the non-citizen. I acknowledge the Government’s concerns as set out in paragraph 8.2(1). These concerns are said to be proportionate to the seriousness of the family violence engaged in by the non-citizen.
So far as frequency is concerned, there is limited frequency spanning over a large number of years. Even if I make the assumption that there were other instances of violence, I am not persuaded that there is an entrenched pattern established on the evidence before me. I accept that there is evidence of two instances in relation to one partner and that that constitutes, therefore, a matter giving rise to a cumulative effect. I think it right to mention again that the violence in question has not extended to a deliberate attempt to harm the person of the domestic partner although no doubt the behaviour was both frightening and intimidating. I accept that some instances of domestic violence have occurred in the presence of children.
I must have regard to the strength, nature, and duration of ties to Australia under paragraph 8.3 of the Direction. I note here that the submission put by the respondent differed from the conclusion of the delegate. The delegate was prepared to find on balance that the strength, nature, and duration of Mr Ihaia’s ties weighed quite strongly in favour of revocation of the cancellation decision.[29] The respondent apparently put in its Statement of Facts, Issues and Contentions that the ties count minimally.[30]
[29] Ibid, 46 [77].
[30] Ex R3, 15 [47].
It is fair to say that Mr Ihaia has demonstrated a positive work ethic, and this was also reflected in the sentencing remarks, as I have said. He also came to Australia as a teenager, and I agree with the delegate that he has spent some of his formative years here. There is some evidence of an ongoing friendship with Ms Rohrlach in her letter of support, but it is limited.[31] I accept that Ms Kartene might also be affected by his departure to New Zealand as that would effectively end one-on-one contact between mother and son.
[31] Ex R1, 136.
All in all, I am closer to the delegate’s position than the respondent’s position, and I accord this consideration some (that is, more than minimal) weight.
I must also have regard to the best interests of minor children in Australia. There are three such children. The eldest, Jayda, is almost 18 years of age and so barely a minor. I must take that into account: see paragraph 8.4(4)(b). I note that Ms Phillips’ letter refers to the mental-health challenges Jayda is suffering, and, similarly, the second child is also displaying signs of behavioural decline. Ms Phillips refers to the fact that she had to provide the emotional and psychological support the children needed during this challenging time.[32] Ms Rohrlach for her part refers to Mr Ihaia being a ‘massive support’ both financially and emotionally during her pregnancy and the first month of Drew’s life until Mr Ihaia was incarcerated. She refers to it being very hard for her personally to struggle with being a single parent with little help.[33]
[32] Ex A2.
[33] Ex R1, 136.
I accept that it is in the interests of these three children to have Mr Ihaia play a positive role in each of their lives. I do not underestimate in this connection the financial contribution that Mr Ihaia might make to the future welfare of the family. He has firm employment lined up should he remain in Australia and a demonstrated work ethic. I believe also that he would try to play a constructive role in his children’s lives. The letters of support from the former partners do attest to that contribution in a meaningful and persuasive way. I agree with the delegate that this should count substantially in Mr Ihaia’s favour, but I do temper that observation with the countervailing consideration that any return to alcohol or drugs would see Mr Ihaia become a disruptive element in his children’s lives.
I accept that Mr Ihaia would obtain work in due course in New Zealand and be able to support his children from there, but he does not necessarily have work immediately available to him there on the evidence before me, and his criminal record might prove to be an obstacle to employment. He will also have to pay rent before remitting funds to Australia. So, all in all, I rate the prospects of Mr Ihaia supporting his family from Australia as higher than his prospects of supporting them from NZ.
Unlike the delegate, I do not attach any weight to the relationship with the nieces. I regard this as too conjectural.
I turn now to the expectations of the Australian community under paragraph 8.5. It is sufficient to note here that I agree with the submissions put at paragraphs [54] to [58] of the respondent’s Statement of Facts, Issues and Contentions.[34] I agree that this consideration weighs substantially against Mr Ihaia.
[34] Ex R3.
I must have regard to so-called “other” considerations under section 9. I accept that there would be some degree of dislocation for Mr Ihaia. He has an uncertain support network in New Zealand and he has not lived there for most of his life having arrived in Australia at the age of 14. New Zealand is similar to Australia in many respects, and I agree with the delegate that he would be capable of settling into New Zealand over time. I agree also with the delegate, however, that he would experience a degree of separation from his children and perhaps also his mother in Australia and that would continue to be a source of emotional hardship for him. Like the delegate, I think that is a fair way to put the matter, and this consideration weighs somewhat in Mr Ihaia’s favour.
WEIGHING THE CONSIDERATIONS

I now turn to weigh the various considerations. The weighing process is not an easy one, and I do not wish to oversimplify my task. It is right to return immediately, however, to the violence in which Mr Ihaia has most recently engaged: it was very serious, indeed. It nearly led to the loss of a life, and there was no explanation for it. It appears to be the direct result of alcohol and/or drug misuse. The Direction speaks strongly against this sort of violence. It does so partly through the ‘community expectations’ consideration, which counts strongly against Mr Ihaia, and also through the ‘protection of the Australian community’ consideration. I do not discount the family violence or other antisocial conduct in which Mr Ihaia has engaged, but clearly his most recent violence is of the greatest concern. I acknowledge my assessment of the risk of recidivism in this regard as low tending towards medium.
The weight to be given to the interests of minor children arises for consideration in this case. I have said on previous occasions, and repeat now, that children are very often the innocent victims of the dysfunction brought about through the poor actions and choices of one or other of their parents. In this case, I believe that the interests of the three children (one of whom I acknowledge is almost an adult) do count substantially in Mr Ihaia’s favour. I believe he has a positive role to play in their upbringing provided he stays away from alcohol and drugs. The money he is likely to earn will be of substantial benefit to them, and he can, I believe, play a constructive role in their lives on a wider level, but only if he stays away from alcohol and drugs. That is the challenge he would face. There is persuasive evidence from the children’s mothers before me of the negative impact of Mr Ihaia’s deportation to New Zealand. I accept that they do what they can to support the children and that there may be others providing support; but I am also of the opinion that Mr Ihaia would have a clear and meaningful role to play as the biological father and as a provider of financial support for the children. There are, of course, other factors to be weighed in this matter, and I must weigh them, but what I have just put exposes a principal tension in this case.
I have found this a difficult case to decide because the violence in which Mr Ihaia has engaged is so serious. I accept that he did not form an intention to kill his victim, but I have also decided that extreme injury and death can follow from wanton acts of violence and the risk of serious injury and death fell within the appreciable range of consequences of Mr Ihaia’s assault. But I must also have regard to the interests of the minor children, which have loomed large for me in my assessment.
All in all, having weighed all the various considerations required to be addressed under the Direction, I have decided that they favour a revocation of the cancellation decision. Returning now to the language of the Act, I am satisfied that there is ‘another reason’ for the cancellation decision to be revoked under s 501CA(4)(b)(ii).
FORMAL DECISION
My decision will be, therefore, to set aside the decision under review and to substitute a decision that the cancellation of the applicant’s visa be revoked.
I certify that the preceding eighty (80)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
Dr N A Manetta
..…[sgnd]...…
Associate
Dated: 26 February 2024
Date of hearing:  18, 19, 25 January 2024
Advocate for the Applicant:      Self-Represented
Advocate for the Respondent:  Madeleine Kelly
Sparke Helmore

[2024] AATA 242

25 January 2024

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