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

[2021] AATA 4502

Karehana and        Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4502 (3 December 2021)

Division:GENERAL DIVISION

File Number(s):      2021/6752

Re:Justis Karehana

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr L Bygrave, Member

Date:3 December 2021

Place:Sydney

The Tribunal affirms the decision under review.

.............................[SGD]..................................

Dr L Bygrave, Member

CATCHWORDS

MIGRATION – mandatory cancellation of visa – special category (subclass 444) visa – visa cancelled under s 501(3A) of the Migration Act 1958 (Cth) – applicant did not pass character test – substantial criminal record – Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – best interests of minor children – other considerations – extent of impediments if removed – links to the Australian community – strength, nature and duration of ties to Australia – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 499, 500, 501, 501CA

SECONDARY MATERIALS

Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).

REASONS FOR DECISION

Dr L Bygrave, Member

3 December 2021

INTRODUCTION

1. The applicant, Mr Justis Karehana, is 26 years old and a citizen of New Zealand. He arrived in Australia on 2 March 2013 and was granted a special category (subclass 444) temporary visa (special category visa).

2. On 9 March 2021, Mr Karehana was convicted in the District Court of New South Wales (NSW) of the offence, ‘reckless grievous bodily harm – in company – T1’, and sentenced to a term of imprisonment of 16 months with a non-parole period of nine months.[1]

   [1] Exhibit G-G2, pages 46-47.

3. On 24 March 2021, the Department of Home Affairs (the Department) notified Mr Karehana that his special category visa was cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) because he did not pass the character test on the following ground: he had a ‘substantial criminal record’ as defined in subsection 501(7) of the Act by virtue of having been sentenced to a term of imprisonment of 12 months or more.

4. On 20 April 2021, Mr Karehana submitted a request for revocation of the mandatory visa cancellation decision pursuant to section 501CA of the Act and, on 13 September 2021, a delegate of the Minister[2] decided not to revoke the mandatory visa cancellation decision.

   [2] Referred to in the decision as ‘Delegate of a Minister administering the Migration Act 1958’.

5. On 20 September 2021, Mr Karehana filed an application for review of this decision to the General Division of the Administrative Appeals Tribunal (the Tribunal).

6. The matter was heard in Sydney on 23 November 2021. Mr Karehana attended the hearing and gave oral evidence via videoconference from Villawood Immigration Detention Centre.

   RELEVANT LEGISLATION AND POLICY

   The power to revoke a visa cancellation

7. Subsection 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied the person does not pass the character test because of the operation of subsections 501(6) and 501(7).

8. Subsection 501(6) of the Act defines the character test. Relevantly, a person does not pass the character test if the person has a ‘substantial criminal record’ as defined by subsection 501(7). Subsection 501(7) of the Act provides that, for the purposes of the character test, a person has a ‘substantial criminal record’ if the person ‘has been sentenced to a term of imprisonment of 12 months or more’.

9. In accordance with subsection 501CA(4) of the Act, the Minister may revoke the original cancellation decision if the person makes representations and the Minister is satisfied that the person passes the character test or there is another reason why the original decision should be revoked. This is a discretionary power.

10. Mr Karehana does not pass the character test in subsection 501(6) of the Act because his criminal record, which includes a sentence of 16 months imprisonment (with a non-parole period of nine months), meets the statutory definition of a ‘substantial criminal record’ in subsection 501(7) of the Act. In a written statement dated 20 October 2021, Mr Karehana agreed he does not satisfy the character test because he has ‘a substantial criminal record’.[3]

    [3] Exhibit A1, paragraph 2.

11. Consequently, in accordance with subsection 501CA(4) of the Act, the Tribunal is required to consider whether there is another reason to revoke the original cancellation decision.

12. The power of the Tribunal to review the decision to cancel Mr Karehana’s special category visa is provided by section 500 of the Act. The Minister has given written directions as to the exercise of the power to review the decision under subsection 499(1) of the Act and subsection 499(2A) of the Act provides that these directions must be complied with. The relevant direction is Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction No. 90).

    Direction No. 90

13. Direction No. 90 provides guidance on how the discretion is to be exercised. Paragraph 6 states:

    Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

14. The Minister sets out the principles in paragraph 5.2 that provide a framework to approach the task of deciding whether to revoke a mandatory visa cancellation. These principles are:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

    (5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be  insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

15. Paragraph 7 of Direction No. 90 states that, taking the relevant considerations into account, a decision-maker should give ‘appropriate weight’ to ‘information and evidence from independent and authoritative sources’ in applying the primary and the other considerations, and generally give ‘greater weight’ to primary considerations than the other considerations. This paragraph also states that one or more primary considerations ‘may outweigh other primary considerations.’

16. Primary considerations are listed in paragraph 8 of Direction No. 90 as follows:

    (a)protection of the Australian community from criminal or other serious conduct;

    (b)whether the conduct engaged in constituted family violence;

    (c)the best interests of minor children in Australia; and

    (d)expectations of the Australian community.

17. Other considerations are set out at paragraph 9 of Direction No. 90 and include (but are not limited to):

    (a)international non-refoulement obligations;

    (b)extent of impediments if removed;

    (c)impact on victims;

    (d)links to the Australian community, including:

    (i)strength, nature and duration of ties to Australia; and

    (ii)impact on Australian business interests.

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL AND OTHER SERIOUS CONDUCT

18. Paragraph 8.1 of Direction No. 90 outlines the Government’s commitment to protecting the Australian community ‘from harm as a result of criminal activity or other serious conduct by non-citizens’ and requires the Tribunal give consideration to:

    (a)the nature and seriousness of Mr Karehana’s conduct to date; and

    (b)the risk to the Australian community should Mr Karehana commit further offences or engage in other serious conduct.

    The nature and seriousness of Mr Karehana’s conduct to date

19. Mr Karehana’s criminal record is outlined in an Australian Criminal Intelligence Commission report dated 5 May 2021 and a District Court of NSW ‘Advice of Court Result’ report dated 24 May 2021, which list the following convictions:

    ·Sutherland Local Court, 30 January 2018.

    oOffence: ‘possess prohibited drug’. Result: section 10 bond.

    ·Mt Druitt Local Court, 30 May 2018.

    oOffence: ‘never licensed person drive vehicle on road – first offence’. Result: $300 fine.

    oOffence: ‘use unregistered registrable vehicle Class A motor vehicle on road’. Result: $200 fine.

    oOffence: ‘use uninsured motor vehicle’. Result: $200 fine. 

    ·Mt Druitt Local Court, 7 November 2018.

    oOffence: ‘never licensed person drive vehicle on road – prior offence’. Result: $300 fine and disqualified from driving for six months.

    ·Central Local Court, 25 June 2020.

    oOffences: ‘stalk/intimidate intend fear physical etc harm (personal)-T2’, ‘assault occasioning abh in company of other(s)-T2’, ‘possess prohibited drug’. Result: 12 months imprisonment (aggregate) with non-parole period of eight months. Severity appeal lodged.

    ·Downing Centre District Court, 5 August 2020 (appeal of orders made on 25 June 2020).

    oOffences: ‘stalk/intimidate intend fear physical etc harm (personal)-T2’, ‘assault occasioning abh in company of other(s)-T2’, ‘possess prohibited drug’. Result: eight months imprisonment (aggregate) with non-parole period of four months.

    ·Central Local Court, 9 March 2021.

    oOffence: ‘reckless grievous bodily harm – in company – T1’. Result: 16 months imprisonment with non-parole period with conditions of nine months. Severity appeal lodged and withdrawn.[4]

    [4] Exhibit G-G2, pages 32-34 and 46-47 and G-G6.

20. At the Tribunal hearing, Mr Karehana accepted that this record of his convictions was an accurate account of his offending.

21. In relation to the offences of ‘stalk/intimidate intend fear physical harm, assault occasioning actual bodily harm in the company of others, and possess prohibited drug’, Mr Karehana’s participation in these offences on 9 November 2019 are outlined in a ‘Statement of Agreed Facts’ filed in the District Court of NSW on 22 April 2020.[5] These agreed facts outline the offences and are summarised below:

    [5] Exhibit R1-SM3, pages 52-56.

    ·The offence of ‘stalk/intimidate intend fear/physical harm’ (s 13(1) Crimes (Domestic and Personal Violence) Act 2013 (NSW)):

    oAt about 10pm, the victim was walking with a friend along a street in Hurstville. They walked past a homeless man and said, ‘Hello, how are you?’. As they continued walking, the man became agitated and kicked a plastic bottle at them. The victim and his friend walked away and laughed about the interaction.

    oThe victim and his friend were approached by two or three unknown males who asked them, ‘Why are you laughing at us?’. The victim and his friend ran, and the unknown males chased them. The unknown males appeared angry and shouted, ‘What did you do to that guy?’, and the victim responded that he, ‘Only stopped to say hello and ask how he was.’

    oThree or four more persons, which included Mr Karehana, then joined the group of three unknown males who were chasing the victim and his friend.

    oThe victim and his friend entered a bar in Hurstville, and were followed by at least four persons, including Mr Karehana. The victim and his friend then left the bar.

    oThe group of males caught up with the victim and his friend on the street, with the victim tripping over Mr Karehana’s outstretched leg and falling on his left knee. The victim got up immediately and kept running. The victim’s friend said to the group, ‘Why are you following us? We weren’t laughing at you.’

    oThe group of males remained on the street, the victim and his friend entered a hotel in Hurstville, and decided it would be safest to wait inside the gaming area of the hotel in case the group tried to chase them again.[6]

    [6] Exhibit R1-SM 3, pages 52-53.

    ·The offence of ‘assault occasioning actual bodily harm in company’ (s 59(2) Crimes Act 1900 (NSW)):

    oMr Karehana entered the main bar of the hotel and saw the victim and his friend. The victim’s friend was able to walk away but the victim was physically blocked by Mr Karehana.

    oMr Karehana grabbed the victim around the chest and shoulder, and pushed him towards the exit of the hotel. Once outside the back entrance to the hotel, they were joined by four other people. Mr Karehana physically restrained the victim against a wall by placing his right arm across the victim’s chest; he maintained this position while three unknown males formed a circle around the victim and started pushing him and grabbing his shirt. The victim became very scared due to the number of people.

    oMr Karehana and an unknown male then pushed the victim away from the hotel exit towards an area that was poorly lit. The group stopped and an unknown male member of the group punched the victim to his right jaw with a closed fist. The victim felt immediate pain and fell backwards.

    oThe group then suddenly ran away and the victim returned to the hotel where he spoke to his friend who had called 000.

    oAt 10:31pm, CCTV showed Mr Karehana re-entering the hotel through a different entrance and going to a hotel room.

    oPolice attended the hotel at 11:30pm where they spoke to the victim and viewed the CCTV footage. Employees at the hotel were able to identify Mr Karehana from the footage as he had been staying at the hotel.[7]

    ·The offence of ‘possess prohibited drug’ (s 10(1) Drug Misuse and Trafficking Act 1985 (NSW)):

    oPolice searched Mr Karehana’s hotel room. Mr Karehana admitted having ‘a small bit of pot’ and police seized a small bag of cannabis that Mr Karehana said was for personal use.

    oMr Karehana was taken to a police station where he declined to participate in an electronically recorded interview with police.[8]

    [7] Exhibit R1-SM 3, pages 53-56.

    [8] Exhibit R1-SM 3, page 56.

22. In his oral evidence to the Tribunal, Mr Karehana said the victim was a complete stranger to him and the assault was unplanned. He acknowledged there were ‘no excuses for his behaviour’ but said at that time, he was hanging around with the ‘wrong crowd’ and making ‘wrong decisions’. He said his possession of cannabis was solely for personal use.

23. The offence of ‘reckless grievous bodily harm in company’ occurred on 29 April 2020, when Mr Karehana was a member of a group purchasing cannabis when the ‘deal went wrong’.

24. In an extract from sentencing remarks made in the Central Local Court on 9 March 2021, Magistrate Quinn described Mr Karehana’s offending as follows:

    The grievous bodily harm is proven and particularly because of the two fractures to a 16 year old’s face where he was bashed by these persons and others when a drug deal went wrong. They were there to assist their other friend, another 16 year old who thought he could just steal something from this victim and then he could run off and these men then chased this young person, had him on the ground, bashed him and then ran off.

    They have pleaded guilty… What they did was they met this person who had the drugs, their victim… They shake hands and then when he tries to steal the drugs from the alleged victim, who produces a knife and…said, ‘I’ll stab you’, [another person] then punches this alleged victim in the face and ran off… The remainder of the group, [including Mr Karehana], ran to catch up with them... They ran to the victim and either pushed or punched him so that he fell to the ground. The victim was on the ground and the four males continue to assault the victim by punching and kicking him. It lasted for about 30 seconds to a minute…

    Once the assault ended, the accused ran away from the victim in…different directions. They had the victim’s phone which was later recovered and the victim was then assisted and he knew [who] had hit him and that was in relation to a drug deal.[9]

    [9] Exhibit G-G2, pages 35-36.

25. Magistrate Quinn, in considering the seriousness of Mr Karehana’s offending, noted that he had produced letters from his parents and fiancé, and had written a letter expressing his remorse. The Magistrate further stated that Mr Karehana has:

    …a limited record but a serious record… Objectively…I find these are very serious matters… I cannot accept they are at a lower level of any sort. I think they are at an upper level of what we consider in this jurisdiction. They are at a medium level of the grievous bodily harm, but I am looking at them here in relation to what happened to the person: two fractures of the jaw; that could not be considered at a lower level…[10]

    [10] Exhibit G-G2, page 38.

26. Mr Karehana told the Tribunal that these remarks by Magistrate Quinn were accurate and he acknowledged his offending was serious. He confirmed that he lodged an appeal on 10 March 2021 as he had hoped to be considered for an ICO (intensive correction order), but withdrew the appeal once he realised he would not be released from jail. His sentence of 16 months imprisonment commenced on 19 July 2020, with a non-parole period of nine months. He was released from jail to Villawood Immigration Detention Centre.

27. For completeness, I note that Mr Karehana’s criminal record also contains convictions for possess prohibited drug on 30 January 2018 in Sutherland Local Court, and driving/traffic offences in the Mt Druitt Local Court on 30 May 2018 and 7 November 2018.

28. At his hearing, Mr Karehana said that he had regularly used cannabis but stopped after he was incarcerated. He said the driving/traffic offences related to circumstances where he was riding a ‘dirt-bike’ off-road in 2018.

1. In the absence of other evidence and noting the Court results, I accept these convictions were at the lower end of offending behaviour.

   Consideration

2. Mr Karehana’s criminal record set out in paragraphs 19 to 26 shows he was convicted in relation to two separate and unrelated serious crimes that occurred on 9 November 2019 and 29 April 2020. On both occasions, Mr Karehana was a member of a group who physically assaulted a single person and, on 29 April 2020, the assault was directed towards a child who was 16 years old and resulted in two fractures to their face.

3. In a statement to the Downing Centre Local Court on 5 May 2020, Mr Karehana wrote:

   I take full responsibility for my actions and I am prepared to accept any punishment given to me. I am not making excuses for what I’ve done and I don’t believe an apology will fix my wrongdoing but I am asking for a chance to prove that things can change…

   Now that I’m older I have learnt a lot from my past mistakes…[11]

   [11] Exhibit R1-SM4, page 71.

4. At the Tribunal hearing, Mr Karehana said his offending behaviour was unacceptable but submitted his actions were ‘unplanned’, ‘out of character’ and due to ‘hanging around with a negative crowd’. He said he had learnt from his mistakes and the time he spent in jail.

5. While I accept that Mr Karehana is ashamed of his offending and has expressed remorse, I find that his criminal record includes two occurrences of very serious and violent offending that took place only five months apart. I note that his offence of reckless grievous bodily harm was on 29 April 2020, a date after he had spent time in jail from 10 November to 16 December 2019, and that he should have been aware of the seriousness of his offending.

6. Having regard to the ‘types of crimes or conduct’ identified in paragraph 8.1.1 of Direction No. 90, I am satisfied the evidence shows the Mr Karehana’s involvement in violent crimes, which has included crimes of a violent nature against a 16 year old child is viewed very seriously by the Australian government and Australian community. I am also satisfied that Mr Karehana’s criminal record demonstrates a trend of increasing seriousness and shows a cumulative effect of repeated offending.

7. I find that the nature and seriousness of Mr Karehana’s conduct weighs very heavily against revoking the cancellation of his visa.

   The risk to the Australian community should Mr Karehana commit further offences or engage in other serious conduct

8. Subparagraph 8.1.2(2) of Direction No. 90 sets out that, in assessing the risk that may be posed by Mr Karehana to the Australian community, I must have regard to, cumulatively:

   ·the nature of the harm to individuals or the Australian community if he engages in further criminal or serious conduct; and

   ·the likelihood of him engaging in further criminal or serious conduct, taking into account,

   oinformation and evidence on the risk of him re-offending, and

   oevidence of rehabilitation giving weight to time spent in the community since his most recent offence.

9. In his request for revocation made on 20 April 2021, Mr Karehana wrote:

   There is no excuse for the things I’ve done and I’m ashamed of myself. I regret the decisions I’d made on the night of the offence that has now led me to this situation. Because of my actions, my family has suffered. The victim had [sic] also suffered physically and mentally and I take full responsibility for all the chaos I created. If I had the chance to prove myself again, I would do everything in my power to at least try to mend those I’ve hurt in the process of going through all of this.[12] 

   [12] Exhibit G-G2, page 90.

10. Mr Karehana also filed references from relatives, friends and his fiancé who live in Australia. These statements were written between 4 April 2021 and 18 November 2021, and note his incarceration/detainment. The references positively describe Mr Karehana as ‘a respectful, reliable and responsible individual’, ‘helpful, generous, kind, loyal’, ‘thoughtful’, a ‘mature, intelligent and a caring young man’, ‘kind hearted, a hard worker and a selfless young man’ and having ‘so much potential’.[13] His fiancé filed a letter dated 18 November 2021, which outlined Mr Karehana’s ‘personal development and his motivation to change’ and stated Mr Karehana has a job opportunity at her workplace if his visa cancellation is revoked.[14]

    [13] Exhibit G-G2, pages 95-98, 101-103.

    [14] Exhibit A2.

11. The only objective evidence before the Tribunal about the risk of Mr Karehana reoffending are two sentencing assessment reports completed by community corrections officers at Corrective Services NSW:

    ·the report dated 5 June 2020 outlined Mr Karehana’s family and social circumstances, his employment history, factors relating to his offending, and his responsivity; and assessed him at a ‘Low/Medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R)’;[15] [emphasis in original] and

    ·the report dated 14 January 2021 set out Mr Karehana’s family and social circumstances, his employment, factors relating to his offending, and responsivity; and assessed him at a ‘medium risk of reoffending according to the Level of Service Inventory – Revised (LSI-R)’.[16] [emphasis in original]

    [15] Exhibit R1-SM4, pages 75-77.

    [16] Exhibit R1-SM4, pages 82-85.

12. Prior to the hearing, Mr Karehana filed certificates for courses he completed on 28 September 2021: ‘drug and alcohol abuse’ comprising seven contact hours; and ‘anger management’ comprising five contact hours.[17] Mr Karehana told the Tribunal he commenced these courses online on 22 September 2021 at Villawood Immigration Detention Centre. He said completing the courses had helped him to ‘better himself’; in terms of drugs and alcohol, he said he did not consume alcohol and denied his use of cannabis influenced his violent behaviour. He said the anger management course made him realise it is not normal to direct his anger against another person and he needs to ‘think before he acts’. Mr Karehana confirmed to the Tribunal that he has not attended any other rehabilitation or courses, and has not participated in counselling/psychologist appointments.

    [17] Exhibit A1.

13. I accept Mr Karehana has shown remorse for his offending behaviour and is genuine in his attempt to reform himself, especially for the benefit of his relationship with his fiancé. I also note that he and his fiancé have moved to another area of Sydney to remove themselves from the negative crowd he socialised with, and he has an opportunity for employment if released into the community.

14. However, Mr Karehana’s oral evidence to the Tribunal was inconsistent: he oscillated between defending his behaviour as being loyal to his ‘mates’, acknowledging these mates are a negative influence on him and he has removed them from his life, and expressing remorse for his behaviour and shame for his family’s suffering. While he showed some insight into his violent behaviour, such as reflecting on his learning from the online courses, his continuing excuses for his behaviour suggest he has limited capacity to fully understand and take responsibility for his offending. This finding is consistent with remarks in the sentencing assessment report dated 14 January 2021, a period approximately ten months prior to his Tribunal hearing.

15. I have weighed all the evidence.  In view of no other psychological or relevant assessments about Mr Karehana’s rehabilitation, I accept the findings of the most recent sentencing assessment report dated 14 January 2021 that set out he has a medium risk of reoffending. I also note that he has not spent time in the community since his most recent offence.

16. In considering the harm and potential risk to the Australian community if Mr Karehana were to reoffend in the future, I am mindful of the nature and seriousness of his behaviour. I also view any harm that would occur if Mr Karehana engaged in further conduct of a violent nature to be an unacceptable risk to the Australian community.

17. I am satisfied the primary consideration of protection of the Australian community weighs very heavily against revoking the decision to cancel Mr Karehana’s visa.

    PRIMARY CONSIDERATION 2 – FAMILY VIOLENCE COMMITTED BY THE APPLICANT

18. Paragraph 4(1) of Direction No. 90 defines family violence as ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful’.

19. As there is no evidence before the Tribunal that Mr Karehana has engaged in any conduct that constitutes family violence as defined in Direction No. 90, I am satisfied that this primary consideration is not relevant to my decision.

    PRIMARY CONSIDERATION 3 – BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

20. Paragraph 8.3(4) of Direction No. 90 lists the factors I must consider in relation to whether revoking the cancellation decision is in the best interests of a minor child affected by the decision. Relevant to this consideration are the nature and duration of the relationship between the child and the applicant, the extent to which the applicant is likely to play a positive parental role, the likely effect any separation would have on the child, and whether there are other persons who already fulfil a parental role for the child.

21. In a ‘personal circumstances form’ completed on 10 April 2021, Mr Karehana listed three female children aged between nine years old and four years old, described his relationship to these children as their ‘uncle’, and wrote a detailed description of his relationship with his nieces.[18] Mr Karehana told the Tribunal that he is very close to his extended family in Australia. He explained that his nieces are the daughters of his cousin and her partner, and he lived with the family in 2017–2018. He said he continues to regularly talk to his family, including his nieces, via facetime, although he has not seen his nieces in person since 2019.

    [18] Exhibit G-G2, pages 87-88.

22. Mr Karehana filed two references from another cousin and her partner, which also described Mr Karehana as an ‘uncle’ to their four children.[19] At the hearing, Mr Karehana said he was close to the eldest two children of this cousin, who are aged six years old and five years old, but he has not spoken with them recently and not seen them in person since 2019.

    [19] Exhibit G-G2, pages 96 and 98.

23. Based on the evidence, I am satisfied that there are minor children in Australia who would be affected by the cancellation of Mr Karehana’s special category visa and it would be in their best interests to revoke the cancellation of his visa.

24. I am satisfied this primary consideration weighs in favour of revoking the decision to cancel Mr Karehana’s visa. However, I place limited weight on this consideration as I find no evidence that Mr Karehana provides a parental role in relation to any of these children, and he would be able to continue his relationship with these children by means of facetime or skype in the way he has since 2019.

    PRIMARY CONSIDERATION 4 – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

25. Paragraph 8.4(1) of Direction No. 90 provides:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.  

26. In paragraph 8.4(2) of Direction No. 90, the Minister states the Australian community expects that the Australian government can and should cancel a non-citizen’s visa if they raise serious character concerns through conduct, which includes serious crimes of a violent nature against children. Subparagraph 8.4(3) stipulates the expectations of the Australian community ‘apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community’.

27. Subparagraph 8.4(4) of Direction No. 90 states:

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

28. Considering the requirement of paragraph 8.4 and the principles set out in paragraph 5.2 of Direction No. 90, I am satisfied the Australian community expects a non-citizen will obey Australian laws, not cause harm to individuals or the Australian community, and the Australian government should cancel the visa of a non-citizen if they commit serious crimes. I further note that subparagraph 5.2(4) of Direction No. 90 states that Australia has a ‘low tolerance’ of criminal or serious conduct by a person who has participated in the Australian community for a short period of time.

29. I have set out the nature and seriousness of Mr Karehana’s conduct and the risk to the Australian community if he were to commit further offences in paragraphs 19 to 45 above. I am satisfied that Mr Karehana’s offending, which commenced as an adult after he had lived in Australia for less than five years, has involved two occasions of serious offending of a violent nature and one of these occasions was against a child.

30. Based on the evidence and having regard to the principles and requirements in Direction No. 90, I find the Australian community would have a very low tolerance of Mr Karehana’s conduct and would expect the Government to not allow him to remain in Australia.

31. I am satisfied this primary consideration weighs very heavily against revoking the mandatory cancellation of Mr Karehana’s visa.

    OTHER CONSIDERATIONS IN DIRECTION NO. 90

32. Paragraph 9 of Direction No. 90 lists other considerations that must be taken into account in deciding whether to revoke the mandatory cancellation of a visa.

33. The other considerations relevant to Mr Karehana are the extent of impediments if he is removed from Australia, and the strength, nature and duration of his ties to Australia.

34. For completeness, I am satisfied there is no evidence before the Tribunal that shows the other considerations of international non-refoulement obligations, the impact on victims or the impact on Australian business interests are relevant to these proceedings.

    Extent of impediments if Mr Karehana is removed from Australia

35. The extent of impediments if Mr Karehana is removed from Australia relates to his capacity to reside in his home country of New Zealand. Pursuant to subparagraph 9.2(1) of Direction No. 90, I must consider his ‘age and health’, whether there are any ‘substantial language or cultural barriers’, and any ‘social, medical and/or economic support’ available to him in New Zealand.

36. Mr Karehana is 26 years old; he has provided no evidence of any health or medical issues.

37. Mr Karehana was born and raised in New Zealand. He told the Tribunal that he attended school in New Zealand until he was 16 years old and then studied for another year before arriving in Australia with his parents when he was 17 years old. Mr Karehana’s parents and half-sister are currently living in New Zealand. I find there is no evidence of any language or cultural barriers to Mr Karehana living in New Zealand.

38. As a citizen of New Zealand, I am satisfied that Mr Karehana would have access to social, medical and economic support. Mr Karehana told the Tribunal that he would need to find accommodation and employment in New Zealand if he was removed from Australia.

39. However, I accept that Mr Karehana has significant social supports – including his fiancé, extended family members and friends – in Australia, and he would experience distress if he is removed from these supports. Mr Karehana provided detailed references from aunts, uncles and cousins living in Australia, and I accept he was raised in a ‘very close family oriented environment’.[20] However, I note that Mr Karehana’s extended family members, including his fiancé, are also New Zealand citizens and consequently, I would expect his relationship with and support from these extended family members would be maintained if he was removed from Australia.

    [20] Exhibit G-G2, page 95.

40. On balance, I am satisfied this other consideration weighs neither for nor against revoking the decision to cancel Mr Karehana’s special category visa.

    The strength, nature and duration of ties to Australia

41. In considering the strength, nature and duration of Mr Karehana’s ties to Australia, paragraph 9.4.1 of Direction No. 90 stipulates that I must consider any impact of the decision on Mr Karehana’s ‘immediate family members’ in Australia and I must have regard to:

    ·how long he has resided in Australia, including whether he arrived as a young child, noting that:

    oless weight should be given where he began offending soon after arriving in Australia; and

    omore weight should be given to time he has spent contributing positively to the Australian community;

    ·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.

42. In his request for revocation form completed on 20 April 2021, Mr Karehana wrote:

    Australia is my home, Australia is where I’ve been brought up as a young teenager. I may not have been born here, but Australia has given me a good life and the opportunity to make something of myself. As much as I love New Zealand, I do not want to spend the rest of my life there…[21]

    [21] Exhibit G-G2, page 78.

43. Mr Karehana came to Australia when he was 17 years old; he has lived in Australia for eight years. Since 2013, he has undertaken employment as a cleaner (2013–2016), and worked in demolition/construction (2016–2018) and unloading containers (2018–2019). Although Mr Karehana claimed in his ‘personal circumstances form’ completed on 10 April 2021 that he had volunteered ‘to help those in need, homeless or troubled teens on the street’, he explained at his hearing that he has not undertaken any volunteer work but would like to.[22]

    [22] Exhibit G-G2, page 92.

44. I consider Mr Karehana’s employment history between 2013 and 2018 as a positive contribution, noting that his criminal record commenced in 2018 after he had lived in Australia for almost five years. 

45. Mr Karehana’s ‘immediate family’, comprising his parents and half-sister, currently live in New Zealand. Although there are no references from these members of his immediate family before the Tribunal, the sentencing remarks of Magistrate Quinn refer to a letter from his parents that states, ‘“Not how we brought him up”, and et cetera. “Hope he accomplishes his goals”’.[23] I also accept that Mr Karehana is close to extended family members who live in Australia, although he listed the nationality of these family members as ‘NZ Kiwi’ in his ‘personal circumstances form’ completed on 10 April 2021.[24]

    [23] Exhibit G-G2, page 38.

    [24] Exhibit G-G2, page 89.

46. Both in written statements and his oral evidence, Mr Karehana said that the person who would be most affected by his removal from Australia is his fiancé. His fiancé is also a New Zealand citizen but has an ‘indefinite right to reside in Australia’.[25]

    [25] Exhibit G-G2, page 25.

47. Mr Karehana’s fiancé filed written statements and gave oral evidence to the Tribunal. She said she has resided in Australia for 15 years with her family. She has been in a relationship with Mr Karehana for approximately three years. She is employed in Sydney and her workplace has offered Mr Karehana a job if his mandatory visa cancellation is revoked. She told the Tribunal that she knows about Mr Karehana’s offending and has read his criminal record, but believes he deserves ‘the chance to stay in Australia’. She outlined their desire to live in Australia and build a life together but accepted that she would go to New Zealand if he is removed from Australia. I find that Mr Karehana’s fiancé is currently the main person in his ‘immediate family’; she has an indefinite right to remain in Australia and this is a strong and enduring tie of Mr Karehana to Australia.

1. In view of the evidence, I am satisfied this consideration weighs for revoking the decision to cancel Mr Karehana’s special category visa.

   CONCLUSION

2. I am satisfied that the first and fourth primary considerations weigh very heavily against the revocation of the mandatory visa cancellation and the second primary consideration is not relevant to this application.

3. I also find the third primary consideration weighs for revoking the mandatory cancellation of Mr Karehana’s special category visa although, for the reasons I set out at paragraph 52, I place limited weight on this primary consideration.

4. In relation to the other considerations, I find the extent of impediments to Mr Karehana if he is removed from Australia weighs neither for nor against revoking the mandatory cancellation of his visa. The strength, nature and duration of his ties to Australia weighs for revocation of the mandatory visa cancellation.

5. Paragraph 7 of Direction No. 90 stipulates that primary considerations should generally be given greater weight than the other considerations. I find no evidence before the Tribunal to suggest this weighting should not apply to Mr Karehana’s application and circumstances.

6. Weighing all the relevant primary considerations and other considerations, I am satisfied there is not another reason why the original decision should be revoked.

7. For these reasons, I affirm the decision made by a delegate of the Minister on 13 September 2021 to not revoke the mandatory cancellation of Mr Karehana’s special category visa.

   DECISION

8. The Tribunal affirms the decision under review.

I certify that the preceding 83 (eighty -three) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

...............................[SGD]..................................

Associate

Dated: 3 December 2021

Date(s) of hearing:	23 November 2021
Applicant:	In person
Solicitors for the Respondent:	Mr Ingmar Duldig, Clayton Utz