Kapene Te Amo (Migration)

The Administrative Appeals Tribunal considered the cancellation of Mr Kapene Te Amo's Subclass 444 Special Category (Temporary) visa. The cancellation was based on section 116(1)(e)(ii) of the *Migration Act 1958*, which allows for visa cancellation if the holder is, or may be, a risk to the health, safety, or welfare of an individual or individuals. Mr Te Amo had been convicted of criminal charges and sentenced to less than 12 months imprisonment, and was also facing further criminal charges. Allegations of gang involvement were also considered.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(e)(ii) of the *Migration Act 1958* was established, and if so, whether the power to cancel the visa should be exercised. This involved assessing the risk Mr Te Amo posed to the Australian community, considering the nature of his criminal convictions, his criminal history in New Zealand, and allegations of his involvement with the Mongrel Mob. The Tribunal also had to consider the degree of hardship to Mr Te Amo and his family, the mandatory legal consequences of cancellation, and the circumstances in which the ground for cancellation arose.

The Tribunal reasoned that while Mr Te Amo had been convicted of serious offences, including kidnapping and extortion, and had a prior criminal history in New Zealand, the evidence regarding his alleged involvement with the Mongrel Mob was not sufficiently probative. The Tribunal noted that the definition of gang membership provided by Mr Te Amo's representatives suggested a structured process, and there was no evidence that the Mongrel Mob itself was involved in criminal activities in Australia. Despite the lack of strong evidence for gang involvement, the Tribunal found that the nature of the criminal charges and convictions indicated unacceptable behaviour and a disregard for Australian laws, suggesting violent tendencies and threatening behaviour that could pose a risk to the safety of the Australian community. The Tribunal also considered the submissions made on behalf of Mr Te Amo regarding the lack of a pattern of violent behaviour in Australia over 17 years, the prospects for rehabilitation, and the fact that some serious charges were withdrawn.

Ultimately, the Tribunal affirmed the decision to cancel Mr Te Amo's visa. While acknowledging the hardship to Mr Te Amo and his family, the Tribunal concluded that the ground for cancellation was established based on his criminal conduct and the potential risk he posed to the community. The Tribunal found that the delegate had adequately considered the relevant circumstances in exercising the discretion to cancel the visa.