Kahu and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 559
•14 May 2025
Kahu and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 559 (14 May 2025)
Applicant/s: Hoane Joseph Kahu
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/1313
Tribunal:General Member S. Evans
Place:Sydney
Date:14 May 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that there is another reason to revoke the cancellation of the Applicant’s visa.
.....................[SGD].................................................
General Member S. Evans
Catchwords
MIGRATION - mandatory visa cancellation – citizen of New Zealand – substantial criminal record – serious offending – multiple terms of imprisonment – arrived in Australia as a child – ties to the community – impediments to removal - decision under review set aside
Legislation
Migration Act 1958 (Cth)
Cases
Kamal v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 200
Secondary Materials
Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
INTRODUCTION
Hoane Joseph Kahu (the Applicant) seeks review of a decision of a delegate of the Minister for Immigration and Multicultural Affairs (the Respondent) not to revoke the cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (the visa), pursuant to subsection 501CA(4) of the Migration Act 1958 (the Act).
The Applicant is a 41-year-old citizen of New Zealand who has resided in Australia since February 1988 when he was 4 years-old. The Applicant was convicted of three counts of rape for which he was sentenced to a term of imprisonment of eight and a half years for each count on 20 March 2006. On 15 July 2024, the Applicant was notified that his visa had been cancelled under s 501(3A) of the Act as he did not pass the character test as he had a substantial criminal record on the basis of s 501(7)(c) of the Act. Under s 501(7)(c), a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
The Applicant requested revocation of the cancellation decision. On 18 February 2025, a delegate of the Respondent decided not to revoke the cancellation of the Applicant’s visa (the reviewable decision). The Applicant sought review of the reviewable decision on 24 February 2025.
For the reasons that follow, the reviewable decision will be set aside.
RELEVANT LAW AND MINISTERIAL DIRECTION
Section 501(3A) provides that the Minister must cancel a visa in certain circumstances:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is 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 a Territory.
Section 501(2) provides that the Minister may cancel a visa in these circumstances.
Section 501CA of the Act applies where the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person.
The character test referenced in s 501(3A)(a)is defined in s 501(6) of the Act. Section 501(6)(e) provides that a person does not pass the character test if they have been convicted of one or more sexually based offences involving a child. Section 501(6)(a) provides that a person who has substantial criminal record does not pass the character test. Section 501(7)(c) provides that a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
The Minister may revoke the original cancellation decision pursuant to s 501CA(4) of the Act. Section 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under s 499 of the Act, which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 110).
Paragraph 5.2 of Direction 110 provides overarching principles which I have considered when reviewing the Applicant’s application. 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 noncitizens 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) The safety of the Australian Community is the highest priority of the Australian Government.
(3) 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.
(4) 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.
(5) 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.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, 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.
(7) 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.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of Direction 110 identifies the considerations the Tribunal must take into account where relevant to a decision.[1]
[1] Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.
The primary considerations in the Direction are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations set out in Direction 110 which must be taken into account where relevant include, but are not limited to:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
ISSUE TO BE DETERMINED
The issue for the Tribunal to consider is whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Act.
Subsection 501CA(4)(b) of the Act provides that the Tribunal may revoke the original decision if it is satisfied:
(a)that the Applicant passes the character test; or
(b)that there is another reason why the original decision should be revoked.
The Applicant was sent notice on 30 June 2009 that the Respondent was considering the cancellation of his visa under section 501(2) of the Act. Cancellation was premised on the Applicant having a substantial criminal record as defined by s 501(7) as he had been sentenced to a term of imprisonment of 12 months or more on 20 March 2006. On 14 July 2010, the Applicant was advised that following consideration, it had been determined that his visa would not be cancelled.
On 15 July 2024 the Applicant’s visa was cancelled under section 501(3A) of the Act. The Respondent considered the Applicant had a substantial criminal record within the meaning of s 501(6)(a) on the basis of s 501(7)(c) of the Act. To satisfy s 501(7)(c), the Respondent again relied on the Applicant’s convictions on 20 March 2006.
The decision maker also established that at the time of the decision, the Applicant was serving a sentence of imprisonment on a full-time basis as he had been sentenced to one month of imprisonment by the Magistrates Court of Queensland at Brisbane on 5 December 2023.
I have considered whether the Respondent might rely on the same offending for the initial consideration to cancel the visa 2009 and again in 2024 to cancel the visa. The Respondent referred me to the matter of Kamal v Minister for Immigration, Citizenship and Multicultural Affairs,[2] in which the Court found that the power in s 501(3A) was not spent and could be exercised where a visa had previously been cancelled on the basis of the same offending under s 501(2).
[2] [2023] FCA 200, [90]-[95].
It follows that I am satisfied that the Applicant does not pass the character test having been sentenced to imprisonment for a period of 12 months or more.
As the Applicant fails the character test the sole issue to be determined is whether there is another reason why the cancellation should be revoked under s 501CA(4)(b)(ii) of the Act.
BACKGROUND AND EVIDENCE
The Applicant’s evidence
In his statement of facts, issues and contentions the Applicant set out his background and addressed the relevant considerations set out in the Direction. He confirmed this evidence during cross-examination at the hearing.
The Applicant is the eldest of his five siblings. From a young age he witnessed his father abuse his mother. As the eldest child he was protective of his younger siblings and provided comfort to them. After his parents separated, the Applicant helped his mother and stepped in to the role of father figure to his siblings. The Applicant’s youngest sibling, CR, is severely disabled and entirely dependent on others for his everyday care. The Applicant spent much of his youth supporting his mother, brothers and sisters.
The Applicant was in prison when his father died by suicide in 2008. After his father’s death, CR became a ward of the state. The Applicant was appointed CR’s guardian in 2012 and remained his primary decision-maker until 2020.
The Applicant worked as a scaffolder until 2018. In 2018 he stopped working and became his brother’s full-time carer. As of 2020, the Applicant was unable to continue as his brother’s carer because of his drug abuse and homelessness.
The Applicant has significant responsibilities in the community including looking after his mother who is in poor health, his partner who is paralysed and CR. He expects his responsibilities will encourage him to take positive steps to avoid reoffending. His family and partner require his presence, and should he return to the community, the Applicant plans to return to work and resume playing sport. He also intends to seek ongoing support and participate in counselling.
The Applicant gave evidence he and his partner commenced dating in 2022, and their relationship became more serious in 2024.
Statement of Candice Skinner, the Applicant’s partner
Ms Skinner has provided two written statements and gave evidence at the hearing. She is aware of the Applicant’s criminal record.
Ms Skinner has known the Applicant for five years and stated they have been in a committed relationship since December 2022. They are currently engaged to be married but their wedding was postponed after she had a serious motorcycle accident. She considers the Applicant to be humble, honest and forthcoming, a hard worker and family oriented. Although they have not lived together as a couple, Ms Skinner considers the Applicant to be her sole source of physical and emotional support. Ms Skinner currently has accommodation in Brisbane. She lives alone and receives in-home care and other support for her injuries through the NDIS.
Ms Skinner writes the Applicant has sought appropriate treatment for mental health conditions which she believes contributed to his offending. She has observed improvement in his mental health since he began receiving appropriate treatment from doctors and mental health professionals.
Ms Skinner has used methamphetamine in the past and has spent time in prison. She has not used methamphetamine with the Applicant. Ms Skinner is the mother of four minor children. Her oldest child sometimes participates when she is speaking to the Applicant on Facetime.
Statement of Wanda Sergent, the Applicant’s mother
Ms Sergent provided a statement dated 18 April 2025 in which she confirmed the Applicant is the eldest of her six children and described him as a pillar of strength and support to her family.
She acknowledges her son has made mistakes for which he has accepted responsibility. He has consistently shown a deep dedication to his ongoing personal growth. She believes the Applicant’s efforts to become a better person are testament to his determination and good character. Ms Sergent gave evidence that the Applicant’s presence is essential to the stability and well-being of her family, and confirmed his significant contribution to caring for CR.
Statement of Kika Arna Cullen, the Applicant’s sister
Ms Cullen gave evidence at the hearing and provided two statements. She lives in New South Wales with her son and her partner. Together they have a son, KZ. Although they have not met, the Applicant and CZ have a close bond, and he regularly calls to check on CZ and sends Christmas and birthday gifts.
Ms Cullen confirmed that her brother has been a source of care and support to both their mother and CR. She speaks regularly to the Applicant, and they met in person in 2021.
Statement of Bianca Brock, the Applicant’s sister
Ms Brock writes that she has consistently maintained a close relationship with the Applicant. She confirms the Applicant has a close relationship with her two daughters who he regularly contacts via electronic means. She writes that the Applicant was full-time carer to their disabled brother CR and also cares for their mother who has heart failure and emphysema.[3]
[3] G16, p111.
Statement of Paul Davy, the Applicant’s former employer
In a handwritten statement Mr Davy writes he is the owner of an automotive restoration business in Queensland. He has known the Applicant for approximately three years. In his opinion, the Applicant would cease offending if he had access to secure employment and accommodation. Mr Davy claims to have employed the Applicant in 2023 as an apprentice motor mechanic. He also claims to have left the Applicant in charge of his business while he was hospitalised for three months and when he needed to attend vehicle auctions.
Sandra McCallum
Sandra McCallum has known the Applicant for 10 years. She is a support person for disabled people in the community. Ms McCallum first met the Applicant through his family. She says the Applicant has been an engaging and positive presence in the community and through his attendance at rugby games as both a participant and a spectator and at community barbeques. She is convinced that the Applicant’s interactions with his mother and disabled brother are indicative of his genuine commitment to personal growth and community contribution.[4]
CONSIDERATIONS AND REASONING
[4] G16, p 112.
Primary Consideration 1: Protection of the Australian Community
I must have regard to the protection of the Australia community from criminal or other serious conduct. Relevantly, paragraph 8.1.1 of the Direction states:
1) When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1.1. provides that decision-makers should also give consideration to the ‘nature and seriousness of the non-citizen’s conduct to date’ and paragraph 8.1.2. requires consideration of ‘the risk to the Australian community, should the non-citizen commit further offending or engage in other serious conduct.’
Nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1 of Direction 110 provides that in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii.crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
The Applicant’s offending history
The Applicant’s criminal history is set out in a National Criminal History Check of 17 July 2024.[5] The details of the offending have been summarised by the Respondent in its statement of facts, issues and contentions.
[5] G4 p 39-43
The Applicant’s relevant offending commenced in 2003 when he was convicted and fined for one count of behave in an indecent manner. In May 2003 he was convicted of one count of unlawful use of a motor vehicle and one count of stealing and ordered to perform community service and issued an 18-month probation order. In March 2004 he was convicted of breach of a probation order following his failure to complete community service.
In April 2004 the Applicant was convicted of one count of stealing and one count of enter dwelling without consent of owner/person in lawful occupation and sentenced to 6-month imprisonment suspended for 12 months after serving two months imprisonment.
On 20 March 2006 the Applicant was convicted of three counts of rape by the Gladstone District Court and sentenced to three terms of eight years and six months imprisonment to be served concurrently. The offences relate to a single incident that took place in March 2005. In summary, the victim was a 15-year-old female walking home by herself, who was heavily intoxicated. The Applicant, who was then 20 years of age, pulled her by the hair and proceeded to have non-consensual vaginal, anal and oral sex with the victim.
On 18 July 2022 the Applicant was convicted of one count of possession of a knife in a public place or school, one count of possess utensils or pipes etc for use and two counts of failure to appear in accordance with undertaking in Maroochydore Magistrates Court.
On 30 August 2022 the Applicant was convicted of one count of evasion offence type 1 vehicle related offence which occurred on 5 November 2020 and one count of stealing in the Brisbane Magistrates Court and sentenced to serve imprisonment for 55 days and 43 days respectively. The convictions followed an incident on 5 November 2020 where the Applicant sought to evade police whilst on a motorbike by accelerating heavily and endangered other road users. The stealing office occurred on 8 July 2022 where the Applicant stole a bicycle.
On 31 October 2022 the Applicant was convicted of one count of contravene direction or requirement and one count of stealing in the Maroochydore Magistrates Court. The Applicant was sentenced to three months imprisonment, suspended for nine months.
On 5 December 2023 the Applicant pled guilty to 15 charges including stealing, fraud, receiving tainted property, possessing dangerous drugs and breach of bail for which he was sentenced to a head sentence of seven months imprisonment. The convictions related to conduct between December 2022 and April 2023. In sentencing the Applicant, Magistrate Courtney stated:
Perhaps consistent with someone who was using drugs, you came into possession of a credit card, used it very quickly over eight occasions to obtain primarily gift cards, but also some other things – services and some tobacco. The enter premises involved you going into a garage – undercover garage, stealing what I can infer later, I should say, was a – not as part of the enter premises but another offence of – in February of 2023, stealing an electric scooter from Mountain Creek State High School. I can infer that was a student’s scooter. [6]
[6] G7, p 64.
On 29 May 2024 the Applicant was convicted of one count of stealing in in the Brisbane Magistrates Court for shoplifting earlier that month.
The Applicant also has a history of traffic offences including speeding, drink driving and driving while relevant drug is present (Methylamphetamine). The Applicant’s evidence is that in September 2021 a vehicle he had rented was stolen and subsequent traffic infringements were wrongly attributed to him. The offences include three counts of exceed speed limit by more than 40km/h. With the Respondent’s consent, I have disregarded those offences in coming to my decision.
The Applicant does not dispute the offending history as set out above. Having regard to the considerations in the Direction, the Applicant’s three counts of rape must be viewed very seriously as they were sexual crimes committed against vulnerable person. The victim detailed the impact of the offences to the District Court. She said she had been an outgoing and social person before the rape. After the rape she was scared to go out and rarely socialised.[7]
[7] G5, p 49-50.
The Applicant was released from prison in 2010. He did not reoffend until December 2020.[8] Since then, he has reoffended frequently. Although the nature of the offending has been less serious than his prior offending, the cumulative effect of his repeat offending has been significant enough to warrant being imprisoned. When considering the seriousness of the Applicant’s conduct, I have taken into account that he was warned in by the Respondent in 2009 that further offending may result in the cancellation of his visa.
[8] TB1, p 36.
Overall, I consider that the Applicant’s offending conduct to be very serious and weighs heavily against revoking the cancellation decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction provides in part:[9]
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[9] Direction (n 16) paragraph 8.1.2.
Further acts of criminal conduct by the Applicant may cause very significant harm to members of the Australian community. Further sexual offending of a similar nature would have the potential to cause devastating physical and psychological injuries to a victim. Further fraud, stealing and related offences by the Applicant would cause financial harm to Australian businesses and individuals. Further traffic offending has the potential to cause significant physical and psychological harm to other road users.
The Applicant accepts his convictions and says he takes full responsibility for his offending, which he acknowledges is very serious. He appreciates his criminal conduct has had a major impact on his mental health and well-being, his family and the community.
A parole board assessment dated 21 May 2010 (the parole assessment) is in evidence.[10] When considering the Applicant’s insight into his sexual offending, the assessment observed discrepancies between the official version and his version of events. He reportedly stated he initially did not realise his actions were non-consensual and took the victim’s lack of resistance as permission to continue offending. Asked about this at the hearing, he said that he was ignorant at that time. He now appreciates the harm he has caused to the victim and can understand why she was so upset. He believes his actions may have caused her to be judged by others in the community and potentially ruined her life.[11]
[10] TB6, p166-188.
[11] TB6, p 186.
The Applicant claims to have participated in ‘extensive rehabilitation programs’ when he was in prison between 2005 and 2010. The parole board assessment confirms he completed the Moderate Intensity Sex Offenders Program (MISOP). The parole assessment also records the Applicant completed the SMART drug and alcohol program. In his written submission, the Applicant notes the parole board believed he was no longer a threat to the community and granted him parole and he completed a sex offender program whilst in the community. He was also required to attend four appointments with a psychologist. After the four mandatory consultations, he and the psychologist agreed there was no utility in continuing. At the hearing the Applicant confirmed that the sessions were primarily focused on his sexual offending.
The parole board assessment recorded the Applicant had completed recommended interventions aimed at addressing his sexual offending and substance abuse, demonstrated appropriate institutional conduct, had not incurred any breaches or negative incidents, and demonstrated appropriate victim empathy during the interview panel.[12] The report also concluded the Applicant accepted responsibility for his offences. Following his release from prison in 2010 the Applicant was placed on parole for almost four years. The evidence is that he complied with the parole conditions without breach.
[12] TB6, p 166-188.
In 2018 the Applicant began using methamphetamine and his use of the drug gradually escalated. Following the loss of his rental accommodation in 2020, he began using methamphetamine every day.
The Applicant acknowledges the connection between his offending from 2020 onwards and his substance abuse. He believes his unstable housing and unemployment also contributed to his offending. He hopes that obtaining secure accommodation after his release into the community will serve as a protective measure. He claims he wants to continue to grow as a person and become a positive role model to family and friends. He submits his commitment to self-improvement is demonstrated by his participation in a three-month anger management course while in immigration detention.
In sentencing the Applicant on 5 December 2023, Magistrate Courtney acknowledged the Applicant had ‘kept out of trouble for a long time – well over a decade’.[13] He said the Applicant’s criminal history was that he commenced reoffending in late 2020 and accepted that the reason for reoffending was personal tragedy in the Applicant’s family and the impact of Covid-19 on his accommodation. Magistrate Courtney expressed confidence at that time that the Applicant’s recidivism could be pulled up quickly enough for his reoffending to be an aberration. However, the Applicant continued to offend following his release from prison.
[13] G7, p 63-66.
The Applicant has a history of substance abuse involving alcohol, cannabis and methamphetamines. Although he has undertaken some substance abuse rehabilitation, it was prior to his use of methamphetamine. Despite acknowledging the role of substance abuse in his offending, there is little indication the Applicant has sought to seriously address his drug use that began in 2018, or his offending which re-commenced in 2020, until he was detained. I take into consideration a Queensland Corrective Services Risk of Reoffending Assessment dated 11 December 2023 scored the Applicant 15, where a score of 20 is the highest.[14]
[14] TB 238.
Should he return to the community, the Applicant plans to stay away from past associates, use positive self-talk and remain mindful of the consequences of reoffending. He intends to make new friends and return to playing sport. He believes the obligations he has to his mother, partner and CR will be significant protective factors. He plans to use his brother, who overcame similar challenges of imprisonment and drug use. a role model. The Applicant has contacted Centacare to help him readjust to living in the community and is confident he will not return to using drugs. He would return to the community having not used drugs for over a year.
The decade where the Applicant did not reoffend demonstrates he can live in the community without pose a risk to the community. He has shown insight into the drivers of his offending and the harm he has caused. The evidence does not support there being a measurable risk of further sexual offending. However, I consider there is a real risk of further offending of a similar nature to his more recent offending. I make this finding based on the absence of measures to address his methamphetamine use, the frequency of his recent offending and the fact that the protective measures he has identified for the most part existed while he was offending.
On balance I conclude there is a real, moderate to low risk that the Applicant may reoffend.
Conclusion as to the protection of the Australian community
The Applicant’s offending is very serious and the harm that may be caused by further offending of a similar nature adds to the weight of this primary consideration. The Applicant has not been deterred from offending by previous interventions of the courts or the prospect of having his visa cancelled. This primary consideration weighs very heavily against revocation and is afforded significant weight.
Primary consideration 2: Family Violence committed by the non-citizen
Paragraph 4(1) of Direction 110 defines family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
The Applicant has no criminal convictions for domestic violence related offending, but police records indicate instances of family violence. The Applicant has also been subject to two domestic violence orders.
In February 2020 police attended the Applicant’s home he shared with his fiancé, following allegations of domestic violence. The Applicant’s fiancé told police the Applicant had previously experienced a mental breakdown due to his financial and family situation and attempted to take his own life by hanging. She had resuscitated him, and he had recently been released from hospital. The Applicant told police that he had thrown some items around the house in frustration, not in violence towards his fiancé. In his evidence at the hearing, the Applicant confirmed he had thrown objects including an outdoor coffee table and made threats which he says were not directed at his fiancé . He said the incident was driven by the frustration that he was unable to do things for himself as he recovered from his attempted suicide.[15] Nonetheless, the police were of the view a domestic violence protection order was necessary and a Protection Order was entered into for the period 25 February 2020 to 24 February 2025. The Applicant said was amended soon after to allow he and his fiancé to continue living together.[16]
[15] TB4, p118-120.
[16] TB65.
On 13 June 2021 police were called to an incident where the Applicant was present in the proximity of his ex- fiancé, which was in breach of the protection order that was in place. The Applicant’s ex- fiancé believed he had been tracking her location on her phone. He climbed into the passenger seat of her vehicle while she had attempted to leave. The Applicant reportedly called her ‘a dog’ after she contacted the police before fleeing on foot.[17] In his evidence the Applicant denied tracking his ex-partner. He said his presence was coincidental, and the details of the incident are misrepresented in the police report.
[17] TB121-3.
On 8 March 2024, police attended a flat in which the Applicant’s ex-partner disclosed that the Applicant had grabbed her around the neck and squeezed, causing her to see stars. He is also reported to have grabbed her by the hair and dragged her around removing clumps of hair. This was confirmed by the victim’s grandmother.[18]
[18] TB130-5.
I note that the Applicant disputed some of the facts in the police reports when taken to them. I acknowledge that he has been subject to different domestic violence orders, but has not been charged with offences relating to family violence. Nonetheless, on balance the evidence supports a finding that some of his conduct would have caused the victims to be fearful. The victims meet the Direction’s definition of a member of a person’s family’, and I find the conduct constitutes family violence.
The Respondent contends there is no evidence that the Applicant has undertaken rehabilitation efforts regarding family violence or to address the underlying factors which contributed to this conduct. I note the Applicant has recently completed an anger management course, but accept the rehabilitation is insufficient relative to the family violence conduct.
I find that the primary consideration of family violence committed by the Applicant weighs moderately against revocation of the cancellation of the Applicant’s visa.
Primary Consideration 3: The strength, nature and duration of ties to Australia
I am required to consider the impact of the decision on the Applicant’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. I am also required to consider the strength, nature and duration of any other ties that the Applicant has to the Australian community having 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 settled permanently in Australia when he was four years old. He completed all his education in Australia and maintains his Australian friends and family made him the person he is.
The Applicant’s immediate family in Australia consist of his mother, partner, three brothers, two sisters and two sisters-in-law. Six of the Applicant’s uncles and aunts, eight nieces and nephews and 15 cousins also reside in Australia. The Applicant does not speak regularly to his uncles and aunties but has maintained contact with them.
Ms Skinner is currently recovering from a serious accident which has left her disabled and she would be adversely impacted by the decision. I accept that Ms Skinner and the Applicant are in a relationship, but I consider their committed relationship is of significantly shorter duration than Ms Skinner indicated. Based on the evidence of Ms Skinner and the Applicant, I do not accept they are engaged to be married. When considering the impact on Ms Skinner, I take into account she has access to physical care and accommodation through the NDIS.
Ms Sergent gave impassioned evidence in support of her son. I accept that she would be deeply affected by his removal and the absence of his emotional and practical support. Based on the evidence of the Applicant, Ms Sergent and Kika-Arna, I accept the Applicant has played a central role in the care of his younger brother CR prior to 2020 and expects to do so again should he return to the community. CR’s interests are best served by having the Applicant remain in the community and provide support to him and their family. His interests are afforded very significant weight.
The Applicant has provided statements of support from social links including Sandra McCallum and Paul Davy. Having heard from the Applicant, I do not accept he worked for Paul Davy as clamed in his statement, but I accept they are genuine ties to the community. The Applicant has contributed to the community through periods of paid employment and involvement in rugby.
Having particular regard to the Applicant’s mother, disabled brother and sisters, this primary consideration weighs heavily in favour of revoking the cancellation of the Applicant’s visa.
Primary Consideration 4: Best interests of minor children affected by the decision
Paragraph 8.4 of the Direction requires decision-makers to decide whether the cancellation is, or is not, in the best interests of minor children in Australia affected by the decision.[19] This consideration applies only if the child is under 18 years old at the time of the decision. In considering the best interests of each child, the factors that must be considered where relevant include:[20]
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[19] Ibid paragraph 8.4.
[20] Ibid.
The Applicant does not have any minor children of his own but has identified nine nieces and nephews whose interests may be affected. CR was born in 2010, BI in 2016, CH in 2017, KH in 2017, CK in 2019, BB in 2020, TH 2021. CZ and CA were born in 2022, and CO born in 2023.
CZ’s mother confirmed at the hearing that the Applicant and her son maintain a connection and he would be affected by the decision. There is little detail about the relationship the Applicant has with his other nieces and nephews or how they may be affected by the decision. In any event, the relationships are non-parental and there is no evidence they are not cared for by their parents.
Ms Skinner has four minor children who have not met the Applicant in person. Ms Skinner claims her eldest child has established a connection with the Applicant over Facetime.
Although there is very little detail about the relationships the Applicant has with his nieces and nephews, I accept that he has established a relationship with CZ, BB and BI and that it is in the best interests of all his nieces and nephews that the Applicant remains in Australia.
Taking into account the limited presence of the Applicant in the lives of the minor children to date, this consideration weighs moderately in favour of the Applicant.
Primary Consideration 5: Expectations of the Australian community
Paragraph 8.5 of the Direction relevantly provides:[21]
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
[21] Direction (n 16) paragraph 8.5.
Paragraph 8.5(3) of Direction 110 states that these expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[22]
[22] Ibid paragraph 8.5(3).
It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather the Tribunal must give effect to the ‘norm’ stipulated in the Direction.
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 in the Direction, without independently assessing the community's expectations in the particular case.
Relevantly, the Direction provides that the Australian community would expect that a person should not continue to hold a visa if they raise serous character concerns through conduct including acts of family violence and commission of crimes of a sexual nature against women.
The Australian community may afford a higher level of tolerance of criminal or others serious conduct by non-citizens who have lived in the Australian community for most of their lives or from a very young age, as the Applicant has.
Having regard to the Direction and the Applicant’s offending, this consideration weighs heavily against revocation.
OTHER RELEVANT CONSIDERATIONS
Legal consequence of decision under section 501 or 501CA
Paragraph 9.1 of Direction 110 states that decision-makers should be mindful that unlawful non-citizens are, in accordance with s 198, liable to be removed from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
There is no claim and no evidence to suggest that Australia’s non-refoulement obligations are enlivened in respect of the Applicant.
This consideration weighs neutrally.
Extent of impediments if removed
Paragraph 9.2 of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
The Applicant is currently 41 years old and is in good health after treatment for syphilis and Hepatitis-C. He understands his father was a former gang member but has not detailed what, if any, effect this may have on him should he return to New Zealand. The Applicant has previously attempted suicide and his mental health may deteriorate without the support of his family in Australia.
As a citizen of New Zealand, the Applicant would have access to social, medical, mental health and economic support as other citizens, and that support can be expected to be comparable to what is available to the Applicant in Australia.
New Zealand is culturally and linguistically similar to Australia. The Applicant indicated he has a distant grandparent in New Zealand, but I accept he would arrive in New Zealand without having existing social or family support. He will likely experience stress and social isolation as he sets about establishing himself in New Zealand. I consider his history of self-harm adds to the gravity of these impediments.
The consideration weighs very heavily in favour of revocation.
CONCLUSION
In balancing the primary and other considerations, the protection of the Australian community weighs very heavily against revoking the cancellation of the Applicant’s visa and is afforded significant weight. This primary consideration would be afforded more weight if not for the extended period without offending. The expectations of the Australia community weigh heavily against revocation. The primary consideration of family violence committed by the non-citizen weighs against revoking the cancellation decision and is afforded moderate weight.
The Applicant has lived almost his entire life in Australia. He has strong ties to his family, and the interests of his mother and severely disabled brother are best served by revocation. The strength, nature and duration of the Applicant’s ties to Australia weigh very heavily in favour of revocation. The best interests of minor children weigh moderately in favour of revocation. I consider the impediments the Applicant would face should he be removed to New Zealand weigh heavily in favour of revoking the visa cancellation and are afforded moderate weight.
This is a very finely balanced decision. On balance, I find there is another reason to revoke the mandatory cancellation of the Applicant’s visa. It follows that the reviewable decision will be set aside.
DECISION
For the reasons outlined above, the Tribunal sets aside the decision under review and in substitution decides that there is another reason to revoke the cancellation of the Applicant’s visa.
Date(s) of hearing: 30 April & 1 May 2025 Applicant: In person (MS Teams) Solicitors for the Respondent: Mr J. Kirstenfeldt, Sparke Helmore
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