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

Laimani and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3226 (17 August 2021)
Division:GENERAL DIVISION
File Number(s): 2021/3469
Re:Jack Laimani
APPLICANT

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

DECISION
Tribunal:Senior Member Linda Kirk
Date:17 August 2021
Date of written reasons: 7 September 2021
Place:Canberra

The decision to refuse to revoke the Mandatory Visa Cancellation Decision dated 15 May 2020 is set aside and in substitution the cancellation of the Applicant’s Special Category (Class TY) (subclass 444) visa is revoked.
...................................[sgd].....................................
Senior Member Linda Kirk
Catchwords
MIGRATION – mandatory cancellation of visa – where visa was cancelled under s 501(3A) because applicant did not pass the character test – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – considerations in Direction No 79 – nature and seriousness of Applicant’s conduct to date – risk of re-offending – the protection and expectations of Australian community – extent of impediments if removed from Australia – giving meaningful consideration to risk to Australian community – impact on victims – decision under review set aside and substituted.
Legislation
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
Cases
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
FYBR and Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461
Jal v Minister for Immigration and Border Protection [2016] AATA 789
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
R v Talimalie; R v Leavai; R v JL [2020] NSWDC 229
WRITTEN REASONS FOR DECISION
Senior Member Linda Kirk
7 September 2021

Jack Laimani (‘the Applicant’) is a 20 year old citizen of New Zealand,[1] who first arrived in Australia on 15 February 2016.[2] Prior to its cancellation, the Applicant held a Special Category (Class TY) (subclass 444) visa (‘the visa’).[3]
[1] Exhibit R1, 1.
[2] Exhibit R1, 96, 117.
[3] Exhibit R1, 9.
On 12 June 2020 the Applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) (‘Mandatory Visa Cancellation Decision’) because a delegate of the Minister (‘the Respondent’) was satisfied he did not pass the character test in s 501(6) of the Act as he was considered to have, pursuant to subsection 501(7)(c), a ‘substantial criminal record’.[4] At the time the Applicant was serving a sentence of full-time imprisonment at Junee Correctional Centre in New South Wales.[5]
[4] Exhibit R1, 81-87.
[5] Exhibit R1, 16.
On 10 July 2020, the Applicant made representations seeking revocation of the Mandatory Visa Cancellation Decision.[6]
[6] Exhibit R1, 89-92.
On 25 May 2021, a delegate of the Respondent decided, pursuant to s 501(CA)(4) of the Act, not to revoke the Mandatory Visa Cancellation Decision (‘the Reviewable Decision’).[7]
[7] Exhibit R1, 15; 16-28.
On 28 May 2021, the Applicant applied to the Tribunal for review of the Reviewable Decision under subsection 500(1)(ba) of the Act.[8]
[8] Exhibit R1, 1-3.
The matter was heard by the Tribunal on 3 August 2021. The Applicant attended the hearing by video-conference from Mannus Correctional Centre and was self-represented. The following persons gave oral evidence by phone and video-conference, and were cross-examined at the hearing:
- the Applicant;
- Applicant’s employer, JW
- Applicant’s brother, SL
Applicant’s sister in law, DSY
The material before the Tribunal consists of:
- Statement of Applicant dated 4 June 2021 filed by Applicant on 23 July 2021 (2 pages) (‘Exhibit A1’);
- Section 501G-Documents filed 23 April 2021 (G1-G16, Pages 1- 143) (‘Exhibit R1’); and
- Bundle of Summonsed Material filed by the Respondent on 6 July 2021 (pages 1- 234) (‘Exhibit R2’).
The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A)     The Minister must cancel a visa that has been granted to a person if:
(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)    …; 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.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7) of the Act relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)…
(b)…
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
…
Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 90
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all decision-makers, except for the Minister acting personally, such as the Minister’s delegates and the Tribunal.[9]
[9] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
On 8 March 2021, the Minister signed Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[10]
[10] Direction, at [2]-[3].
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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 measureable 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 noncitizens 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 noncitizens 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.
Paragraph 6 of the Direction provides that, informed by the principles in paragraph 5.2, a
decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
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.
Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:
a)International non-refoulement obligations;
b)Extent of impediments if removed;
c)Impact on victims; and
d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘… information and evidence from independent and authoritative sources should be given appropriate weight.’
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[11]
[11] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Paragraph 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another[12] at [57]:
… the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501.
[12] (2016) 241 FCR 461.
ISSUES FOR DETERMINATION
Before the power in sub-section 501CA(4) of the Act to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by sub-section 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo,[13] the Full Court of the Federal Court of Australia made the following observations in relation to sub-section 501CA(4):
... there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view...[14]
[13] [2018] FCAFC 151.
[14] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
The issues for determination are:
1)whether the Applicant passes the ‘character test’; and
2)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Background and employment
The Applicant was born in New Zealand in 2001.[15] He first entered Australia in February 2016 when he was aged 14 years.[16] The Applicant lived with his aunt in Victoria and when his brother migrated to Australia two months later, he also lived with them. They later moved to Young in New South Wales where the Applicant lived until he was incarcerated.[17]
[15] Exhibit R1, 1.
[16] Exhibit R1, 117.
[17] Transcript of proceedings, 3 August 2021, 8.
The Applicant attended Gallan Secondary College in year 9. He told the Tribunal that he was expelled after he was suspended multiple times.[18] He attended Mount Ridley College in year 10 until they moved to Young, following which he attended Young High School in year 10 and 11 until he left school in early 2018.[19]
[18] Transcript of proceedings, 3 August 2021, 9.
[19] Transcript of proceedings, 3 August 2021, 9-10; Exhibit R1, 109.
The Applicant told the Tribunal that after his offending in October 2017 he continued to go to school until he left and started working in the orchards in Young. He moved to Sydney at the end of 2018 where he lived with his family.[20] He tried to enrol in school, but they told him to come back at the end of the year.[21]
[20] Transcript of proceedings, 3 August 2021, 19.
[21] Transcript of proceedings, 3 August 2021, 19-20.
The Applicant worked in demolition between June 2019 to November 2019.[22] He also did some volunteer work five days a week for about four months in a second-hand store run by his cousin.[23]
[22] Exhibit R1, 104.
[23] Exhibit R2, 222; Transcript of proceedings, 3 August 2021, 43.
Criminal history in Australia
The Applicant’s criminal history in Australia is set out in his National Criminal History Check dated 12 June 2020.[24]
[24] Exhibit R1, 29-31.
Assault in the company of others – October 2017
On 1 October 2017, when he was 16 years old, the Applicant was involved in a violent assault with two co-offenders. The factual background to this offending, which occurred in the early hours of the morning of 1 October 2017 in the streets of Young, is detailed in the remarks of the sentencing Judge.[25] Earlier in the evening the Applicant and his co-offenders had attended a birthday party at the local RSL Club, where they had consumed alcohol. After the three offenders left the RSL Club, an incident occurred in the street between TN and HP (the partner of one of the offenders). They argued and she told TN to leave and then she fell to the ground. Although there were a number of people in the vicinity, no one saw how HP ended up on the ground. She was intoxicated at the time and was unable to recall details, except to say that things became heated and there was grabbing and pushing.
[25] Exhibit R1, 32-80.
The Applicant and his two co-offenders violently assaulted TN, with the assault including kicking or stomping on him while he was on the ground.[26] TN sustained fractures to his jaw and skull, as well as a subgaleal hematoma on his head, bruising all over his face and bilateral swelling of the eyes. He was transferred from Young District Hospital to the Base Hospital at Wagga Wagga and was later transferred to St. George Hospital by air ambulance for surgery.[27] A CT scan showed a seven millimetre contusion on the subcortical white matter of the brain, meaning that TN suffered bruising to the brain itself. Additionally, he was diagnosed as suffering post-traumatic amnesia. Surgery was performed by way of internal fixation of the jaw fracture, however the inserted arch bars had dislodged and further surgery was required, resulting in TN spending three to four months off work. [28] He also experienced ongoing anxiety and headaches.[29]
[26] Exhibit R1, 35 at [8], 36 at [64-67].
[27] Exhibit R1, 57-58, 64 at [137], [142] and [178].
[28] Exhibit R1, 58 at [143], 64 at [177].
[29] Exhibit R1, 64 at [179].
During the assault on TN, CF intervened to assist, pushing off the offenders and calling them ‘a bunch of dogs’. CF was then punched in the mouth and hit from the side by two of the offenders, resulting in him falling down. The offenders then started punching and kicking him and he fell into a bush. The Applicant delivered a number of kicks to CF, including at least one to the head, and he sustained cuts inside his mouth and a lump on his head. His ribs and hips were hurting the next day and he vomited blood.[30] Very soon after the attack on CF, a group of other people came upon the scene and attempted to assist. The Applicant and his cooffenders hit, punched, pulled and shoved these people, and the Applicant ‘shoulder charged’ one of the females which resulted in a charge of common assault.[31]
[30] For example, see Exhibit R1, 46 at [66] and 48 at [77].
[31] Exhibit R1, 34 at [2].
When police went to the Applicant’s school to place him under arrest in relation to the assault on 1 October 2017, he was found in possession of a silver knuckle duster and a wooden bat.[32] He was convicted of Possess or use prohibited weapon with permit-T2 and Have custody of an offensive implement it a school (sic) on 19 October 2018.[33] He received a 10 month and 14 month good behaviour bond for these offences.[34] The Applicant was taken into custody and transferred to Wagga Wagga Juvenile Detention Centre on 3 December 2019 where he was remanded until 25 May 2020 when he was sentenced for the October 2017 offences.[35]
[32] Exhibit R2, 209.
[33] Exhibit R1, 30-31, Exhibit R2, 202.
[34] Exhibit R1, 30-31.
[35] Exhibit R2, 60, 84.
On 25 May 2020, the Applicant was convicted of Common assault-T2, Affray-T1, Assault occasioning actual bodily harm in company of other(s)-T2 and Cause grievous bodily harm to a person with intent-SI in relation to the incident on 1 October 2017.[36] In his decision, Judge Lerve stated that he was not satisfied that TN had provoked the incident or that the Applicant and his co-offenders were acting in self-defence.[37] His Honour found that the three offenders were all involved in offering violence to any and all of the witnesses present at the scene, who were doing no more than attempting to come to the aid of the victims. His Honour remarked that the actions of the Applicant and his co-offenders would have instilled fear in those persons present. Judge Lerve described the attack against TN as ‘very marginally below the mid-range of objective seriousness’, ‘moderately below mid-range’ in respect of CF, and ‘well within the mid-range of seriousness’ in respect of the Affray charge.[38]
[36] Exhibit R1, 29-30.
[37] Exhibit R1, 44 at [51],61 at [159].
[38] Exhibit R1, 66-67 at [191]-[193].

The Applicant received a four years and three months head sentence with a non-parole period of two years and three months. Despite committing the offences as a juvenile, the Applicant was convicted and sentenced as an adult. Judge Lerve was satisfied that there was nothing in the Juvenile Justice Background Report to indicate that immaturity was a significant factor in the offending, and the Applicant had ‘no compunction about becoming involved in the very substantial violence that was taking place’.[39]
[39] Exhibit R1, 70 at [210].
The Applicant was asked about this offending during cross-examination at the hearing. He agreed that the offences he committed were ‘extremely serious’.[40]
[40] Transcript of proceedings 3 August 2021, 16.
Alcohol and substance use
The Applicant’s offending in October 2017 occurred following the consumption of alcohol,[41] although he initially denied that he was under the influence of alcohol at the time.[42] The Applicant subsequently acknowledged that he was under the influence of drugs and alcohol when he offended.[43] In his undated statement received by the Department on 23 December 2020, the Applicant wrote:
I was involved in an altercation that in hindsight could have been handled in so many ways with many different outcomes/consequences. Although I wasn't heavily inebriated, I believe I was in the state of becoming intoxicated or somewhat intoxicated at the time of the incident. Without prejudice, I believe the combination of drugs and alcohol in my system contributed to the way I reacted in such a violent manner. I don't normally consume alcohol but being 16 years of age, I didn't really know any better. I think it was more the influence of my 2 older cousins who were at the time drinking alcohol and. having fun that made me crave for that curiosity of alcohol consumption.[44]
[41] Exhibit R1, 36; Exhibit R2, 185-186.
[42] see Corrective Services notes and Juvenile Justice report dated 18 October 2018,Exhibit R2, 222.
[43] Exhibit R1, 108.
[44] Ibid.
The Applicant told the Tribunal that although he had consumed alcohol on the night of his offending, he knew what he was doing. He stated that he cannot say that alcohol was a factor because if the same thing had happened when he was sober, at that time of his life, he believes he would have reacted in the same way.[45]
[45] Transcript of proceedings 3 August 2021, 14-15.
Remorse and responsibility for offending
In his sentencing remarks dated 25 May 2020, Judge Lerve noted that the Applicant had not pleaded guilty, he had showed little insight into his actions, by maintaining that his actions had not been properly portrayed, and he was unable to accept responsibility for his actions. His Honour found that there was no evidence on which he could make a finding of remorse.[46]
[46] R v Talimalie; R v Leavai; R v JL [2020] NSWDC 229 at [224].
Judge Lerve observed that the Applicant ‘requires ‘a good deal of counselling or other assistance’ to address the issues relating to the death of his adoptive mother, to avoid anti-social peers, to develop pro-social peer, to develop remorse and a greater respect for the law and to develop better coping strategies’.[47]
[47] Exhibit R1, 72 at [222].
In his undated statement, the Applicant wrote:
I was 16 years and six months at the time of the offending and I’m now 19 years of age. I was under the influence of drugs and alcohol prior to the events that occurred on the night of 30 September 2017 which I am absolutely disgusted and ashamed of myself. I am truly sorry and remorseful for my actions.[48]
[48] Exhibit R1, 108.
In his statement dated 4 June 2021, the Applicant wrote:
I know my charges (sic) of a serious matter and I accept full responsibility for my actions and I am very sorry for what I have done.
…
I understand that what I did was no excuse but it has made me a much better person. My heart goes out to the victim and I hope one day he can forgive me.[49]
[49] Exhibit A1.
The Applicant told the Tribunal that acted in the way he did because his older cousins were fighting and he felt obligated to get involved.[50] Fighting and violence was the only way he knew to solve problems, but he now knows that ‘there was a thousand ways [he] could have stopped [the offences] from happening.’[51]He is sorry that he did not stop the fight and that the victim was badly hurt.[52]
[50] Transcript of proceedings 3 August 2021, 20.
[51] Transcript of proceedings 3 August 2021, 21.
[52] Transcript of proceedings 3 August 2021, 33.
Rehabilitation and risk of re-offending
In his sentencing remarks, Judge Lerve observed,
... Given the attitudes expressed and the manner in which the young person conducted himself taken with the somewhat concerning issues relating to violence at and in the vicinity of the schools he has attended I am not prepared to find on balance that the young offender is unlikely to re-offend.
There are some positive aspects. He has good family support. He is a good sportsman. He expresses a wish to obtain employment. Despite these issues the issue of his longer rehabilitation will depend largely on how he engages with the relevant authorities upon release and the course that he takes. Put simply, it is too early to determine whether there are good prospects of rehabilitation. I decline to make a finding on balance that there are good prospects of rehabilitation.[53]
[53] Exhibit R1, 72 at [224]-[225].
In his undated statement, the Applicant stated that when he was arrested, he realised that his poor decision-making and his actions had severe repercussions, and his suppressed feelings and emotions resurfaced.[54] He continued:
I am slowly on a recovery band wagon for the better, and although I am only in my early infancy in regards to my rehabilitation, but I am mentally, physically and spiritually stronger.[55]
[54] Exhibit R1, 108.
[55] Ibid.
The Applicant told the Tribunal that when he was in juvenile detention, he was seeing a psychologist about once a week. In the adult prison he spoke regularly to the chaplain.[56]
[56] Transcript of proceedings 3 August 2021, 32.
In his statement dated 4 June 2021, the Applicant wrote:
I was on bail for 2 years before being incarserated (sic) and I did not breach my conditions once. I had a full time job which I attended 5-6 days a week. I also started boxing and fell in love with it instantly it helped me to mature and grow mentally and helped me be in control of my mind.
…
I have learnt how to control my nerves and emotions.[57]
[57] Exhibit A1.
During cross-examination, the Applicant told the Tribunal that his bail conditions when he was in the community were an 8pm curfew, he had to report in three times a week before 6pm, and he could not drink or take illicit drugs or enter licensed premises.[58] He told the Tribunal that he complied with these conditions because he needed to look after himself and his brother also kept him in check.[59]
[58] Transcript of proceedings 3 August 2021, 17; Exhibit R2, 212-213.
[59] Transcript of proceedings 3 August 2021, 18-19.
The Applicant told the Tribunal that he does not want to fight on the street ‘ever again’ after what happened. He was traumatised and scared following his offending in October 2017 as he heard that the victim had died from his injuries.[60] As a consequence, he has ‘corrected [his] ways’ and has not been in any further trouble either in the community or in gaol.[61]
[60] Transcript of proceedings 3 August 2021, 23.
[61] Transcript of proceedings 3 August 2021, 23-24.
Behaviour in gaol
The Applicant told the Tribunal that he tried to enrol in the EQUIPS drug and alcohol and violence programs when he was in gaol but was told that he was not eligible for them because he does not have a history of drugs and alcohol and he was ‘low risk’.[62]
[62] Transcript of proceedings 3 August 2021, 20-21.
In his undated statement the Applicant wrote:
Whilst in custody I reached out for help and requested to participate in rehabilitation programs the gaol had on offer to young offenders. However, I did not meet the criteria specified as my risk of re offending score rate, was too low, so I was deemed not eligible. I was quite perplexed and annoyed of the response especially knowing that the content had a significant relevance to my needs. After numerous requests made, I have been informed that I am eligible to complete similar programs but through correspondence.
I have embraced my incarceration and I have found myself living and working with a diverse group of good men who like me have all made bad choices/mistakes in life. I believe my incarceration has been a true blessing in disguise for me thus far.
…
At the end of my legal preceding (sic) I was sentenced to an adult working farm gaol (Mannus Correctional Centre) classified for privileged inmates. This meant I will be if not, the youngest inmate there and that thought was overwhelming.
I couldn't be so wrong; my transition was a true blessing. I have adapted to my new surroundings and have embraced my new beginnings. I started off exactly where I left Juvenile and have initiated a fitness training program, and it is going extremely well. I now find myself teaching and mentoring individuals who are much older than me. A total coin flip from when I was in Juvenile, and that has made me a much more mature and humble individual.[63]
[63] Exhibit R1, 108-109.
Courses completed
The Applicant provided the following documents certifying his completion of various courses:
·NSW TAFE Transcript of Academic Record dated 21 October 2021;
·NSW TAFE Statement of Attainment in Livestock dated 2 October 2020;
·Shepherds Park Education and Training Unit History Award dated 2 July 2020;
·Shepherds Park Education and Training Unit Barista Award dated 2 July 2020;
·Shepherds Park Education and Training Unit Investigating Food Award, dated 2 July 2020; and
·Alert Force Statement of Attainment Prepare to Work Safely in the Construction Industry dated 19 April 2021.[64]
[64] Bundle of documents filed by the Applicant on 6 July 2021 (13 pages).
The Applicant stated that he registered to complete as many courses as were available to him in custody, including Digital Literacy (Microsoft essentials), Certificate II and Ill in Business, Traineeship in Horticulture, Test and Tag, Forklift license and Tractor licence.[65]
[65] Exhibit R1, 109.
The Applicant did not breach any gaol rules/regulations that required the issuing of any form of disciplinary notification.[66] A New South Wales Corrective Services Report recorded that he had positive work reports.[67]
[66] Ibid.
[67] Exhibit R2, 184.
Family in Australia
The Applicant’s brother, sister-in-law and nephew, to whom he is very close, reside in Melbourne. One of his sisters has recently migrated to Australia.[68] He has a minor aged nephew, RTL, who was born in August 2018, who is the son of the Applicant’s brother and his godson.[69] In his Personal Circumstances Form dated 6 July 2020, the Applicant stated that he has a ‘great’ relationship with RTL, which is like that of a ‘second dad’. He feels like RTL is his ‘actual son’ and he would ‘do anything’ for him.[70] Prior to his incarceration he would feed, change and play with RTL and bought him things he needed.[71] When the Applicant was in juvenile detention RTL visited him about ten times. The Applicant currently maintains contact with RTL by video calls and phone calls. RTL visited the Applicant in gaol two months ago.[72] The visits have been limited due to the COVID restrictions. The Applicant confirmed that RTL lives with and is cared for by his biological mother and father. He also has a niece who is aged one year who he met for the first time when she visited him in gaol two months ago.[73] His sister-in-law is pregnant and expecting her third child in September.[74]
[68] Transcript of proceedings 3 August 2021, 42.
[69] Exhibit R1, 100.
[70] Transcript of proceedings dated 3 August 2021, 37.
[71] Exhibit R1, 101; Transcript of proceedings dated 3 August 2021, 36.
[72] Transcript of proceedings dated 3 August 2021, 36.
[73] Transcript of proceedings dated 3 August 2021, 37.
[74] Transcript of proceedings dated 3 August 2021, 40.
The Applicant confirmed that he also has four uncles/aunts, three nieces/nephews and six cousins residing in Australia.[75] His cousins are aged over 18 years, with the exception of one cousin who is four years old, but with whom he is not in contact.[76]
[75] Transcript of proceedings dated 3 August 2021, 37, 39.
[76] Transcript of proceedings dated 3 August 2021, 39-40.
Family in New Zealand
The Applicant confirmed that his father, step-mother, brother and two sisters reside in New Zealand.[77] He told the Tribunal he has a ‘good’ relationship with his father, although he has not spoken to him since April or May 2020.[78] He would be able to live with his father if he were returned to New Zealand.[79] His father has a partner with whom he has a child. He has a good relationship with his siblings and believes he would be able to talk to them and spend time with them if he were returned to New Zealand.[80]
[77] Transcript of proceedings dated 3 August 2021, 38; Exhibit R1, 102.
[78] Transcript of proceedings dated 3 August 2021, 40-41.
[79] Transcript of proceedings dated 3 August 2021, 41.
[80] Transcript of proceedings dated 3 August 2021, 41.
Future plans
The Applicant told the Tribunal that if he is able to remain in Australia, he has a job lined up with his former boss.[81]
[81] Transcript of proceedings dated 3 August 2021, 43.
In his undated statement the Applicant wrote:
I know I have the potential to do great things in life and I am more conscious that ‘time is of an essence’ and it cannot be taken for granted. I have dreams and aspirations to pursue and people in my life to make proud and give back too (sic).[82]
[82] Exhibit R1, 108.
Impediments on return
In his Personal Circumstances Form, the Applicant wrote that there are less work opportunities for him in New Zealand, and the gang violence is ‘getting worse and more violent and wreckless (sic)’, and he wants to stay away from it.[83]
Witness Evidence
[83] Exhibit R1, 106.
Applicant’s employer - JW
JW provided a written statement in support of the Applicant dated 21 May 2021,[84] and gave oral evidence by telephone at the hearing. He has known the Applicant and his extended family for more than five years.[85] At the time of the Applicant’s offending, JW was living in Young, and he knows both the offenders and the victims, and he attended the trial. [86] He has observed that the Applicant ‘has taken complete responsibility’ for his offending, and he has used the time in gaol over the past 12 months ‘to reflect and actually make changes.’ In his view, the Applicant’s ‘maturity far exceeds anyone [he] knows of that age’ and he has ‘really stepped up’ and been open about what he is currently going through and is planning for the future.[87]
[84] Bundle of documents filed by the Applicant on 6 July 2021 (13 pages), 7.
[85] Bundle of documents filed by the Applicant on 6 July 2021 (13 pages), 7. ; Transcript of proceedings dated 3 August 2021, 47.
[86] Transcript of proceedings dated 3 August 2021, 47.
[87] Transcript of proceedings dated 3 August 2021, 48.
In his statement, JW wrote:
I write in support of [the Applicant] and furthermore am placing myself to support [him] on his release with accommodation and financial support along with a position with my company. I have and will continue to mentor [the Applicant] as he did lack guidance in his younger years.[88]
[88] Bundle of documents filed by the Applicant on 6 July 2021 (13 pages), 7; Transcript of proceedings dated 3 August 2021, 53.
JW told the Tribunal that it is not a ‘light decision’ for someone in his position to ‘put [his] hand up’ to support the Applicant in the way that he has, but he has done so because he strongly believes that the incident ‘doesn’t reflect the person that [the Applicant] is’.[89] He would not be offering the Applicant support if he thought there was any risk of him reoffending.[90]
[89] Transcript of proceedings dated 3 August 2021, 49
[90] Transcript of proceedings dated 3 August 2021, 50
JW explained to the Tribunal that the Applicant would be living with him on release and that he will be in a ‘stable environment’. He will pay for anything that the Applicant needs and give him an opportunity to work.[91] JW is the national sales manager for a business-only telco based in Wagga Wagga. He will employ the Applicant as an installer, and he will be installing phones and NBN services in the Riverina under JW’s supervision.[92]
[91] Transcript of proceedings dated 3 August 2021, 53.
[92] Transcript of proceedings dated 3 August 2021, 54.
Applicant’s brother - SL
The Applicant’s brother provided an undated statement[93] and gave oral evidence by telephone at the hearing. He told the Tribunal that he is currently living in Melbourne with his partner and two children and works at FedEx, and also does some temporary fencing work.[94] He would be able to provide the Applicant with accommodation and is confident that he would be able to arrange employment for the Applicant with FedEx.[95] In his statement SL wrote
It has been emotionally traumatising to have endured these last couple of years with my little brother being in prison, and all we both need is to be together again. We are a huge part of each other's support system and though he is my little brother, he has been my backbone in some of my hardest trials. All things considered with the possibility of [the Applicant] being deported, I fear greatly being apart from my little brother and having to continue to live through the separation that we are still not used to. I have established a good and healthy life for myself here in Australia and I would be ever grateful for the chance to help my little brother benefit from this too. Family really is everything to us.
If [the Applicant] were granted the opportunity to be able to live with me upon his release, I am in a position to care and provide for him financially, give him a stable home and assist him in getting on his feet to pick up where he left off in pursuing a career for himself. I am able to secure him work through my place of employment (FedEx - located at Melbourne Airport), and as his older brother we have a great relationship where I am able to support him mentally and emotionally throughout his transition back into normal life. I truly believe I am the only person suited to assist [the Applicant] in this way.
[93] Bundle of documents filed by the Applicant on 6 July 2021 (13 pages), 9-10.
[94] Transcript of proceedings dated 3 August 2021, 57.
[95] Transcript of proceedings dated 3 August 2021, 58.
In his oral evidence and in his statement, SL described the ‘close relationship’ between his son RTL and the Applicant:
My eldest child is extremely close with [the Applicant] (who is his Godfather) and the pair have a bond like no other. My son has been a huge encouragement for [the Applicant] to get through some of his toughest days while he has been away, especially with frequent phone calls, occasional in-person visits and primarily our weekly video visits. I know for a fact the grief they would both endure if their bond was to be severed in such a way.[96]
[96] Bundle of documents filed by the Applicant on 6 July 2021 (13 pages), 9; Transcript of proceedings dated 3 August 2021, 60
Applicant’s sister in law - DSY
The Applicant’s sister-in-law provided an undated statement and gave oral evidence by telephone at the hearing. She told the Tribunal she has known the Applicant since February/ March 2017. They have a strong sibling-like relationship and he will often phone to talk to her during the week when SL is at work.[97]
[97] Transcript of proceedings dated 3 August 2021, 63.
In her statement, DSY described the relationship between the Applicant and her son RTL:
[The Applicant] has a very close relationship with [RTL] and though my son is young and [the Applicant] has been away for a long time now, he still knows and loves his uncle for who he has always been to him. He recognises him and talks to him during video visits, knows his voice when he calls and is the happiest little boy when finally seeing him in person. I think this speaks volumes on their relationship.[98]
[98] Bundle of documents filed by the Applicant on 6 July 2021 (13 pages), 11-12.

She confirmed that they visited the Applicant in gaol on a weekend a few months ago with their children and spent five hours with him both days. It had been very difficult to travel interstate before then due to the COVID restrictions. They had a really good weekend with the Applicant and left there feeling ‘really fulfilled’.[99]
[99] Transcript of proceedings dated 3 August 2021, 64.
DSY described the impact it would have on their family if the Applicant were returned to New Zealand:
I can't put into words the immense sadness and void this will bring upon our family dynamic. To be separated for years due to his imprisonment has been one thing, but to permanently live apart in different countries with no other choice will most definitely cause deeper emotional trauma. This is who our family is and for most of the past 5 years we have only had each other. To the world this may mean little, but to my little family this means the world.[100]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[100] Bundle of documents filed by the Applicant on 6 July 2021 (13 pages), 11-12.
1)Does the Applicant pass the ‘character test’?
In the representations and documents that the Applicant submitted to the Department and the Tribunal, he does not dispute the information in the National Criminal History Check dated 12 June 2020 regarding his criminal convictions and sentences. This report records that on 25 May 2020, the Applicant was convicted of Common assault-T2, Affray-T1, Assault occasioning actual bodily harm in company of other(s)-T2 and Cause grievous bodily harm to a person with intent-SI in relation to an incident on 1 October 2017. The Applicant received a four years and three months head sentence with a non-parole period of two years and three months.
The Tribunal is satisfied that the Applicant has a ‘substantial criminal record’ for the purposes of section 501(3A)(a) and section 501(6) of the Act as he has been sentenced to a term of imprisonment of 12 months or more: section 501(7)(c). The Tribunal is also satisfied, for the purposes of section 501(3A)(b) of the Act, that on 12 June 2020, the Applicant was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the state of New South Wales.
Having found that the Applicant does not satisfy the character test, the Tribunal finds that section 501CA(4)(b)(i) cannot be invoked to revoke the Mandatory Visa Cancellation Decision.
2)Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
In determining whether pursuant to section 501CA(4)(b)(ii) of the Act there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must, in accordance with paragraphs 8 and 9 of the Direction, take into account the relevant ‘primary considerations’ and ‘other considerations’.
PRIMARY CONSIDERATIONS
Primary Consideration 1 – Protection of the Australian community
Reiterating the general guidance and principles in the Direction, paragraph 5.2 states that:
a)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; and
b)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage 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.
Paragraph 8.1(2) states that in considering the need for protection of the Australian community, decision-makers should also have regard to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) Nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1(1) sets out factors to be considered in determining the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Relevant to the Applicant’s conduct, the Tribunal must have regard to the following factors:
(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 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;
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 seriou
(i)…
(ii)…
(iii)…
(iv)…
(c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending;
(f) whether the non-citizen has provided false of misleading information to the Department, including by not disclosing prior criminal offending;
...
Having regard to the factors in paragraphs 8.1.1(a)(i) and (ii) of the Direction the Tribunal finds that the four offences for which the Applicant was convicted in May 2020 are serious. The Applicant has committed serious offences, including a violent assault, and was sentenced to a custodial sentence demonstrating the seriousness of his offending. Judge Lerve described the attack against TN as ‘very marginally below the mid-range of objective seriousness’, ‘moderately below mid-range’ in respect of CF, and ‘well within the mid-range of seriousness’ in respect of the Affray charge. The primary victim, TN, was seriously injured and required surgery to repair the fracture to his jaw which resulted in his requiring three to four months off work and ongoing headaches and anxiety. The Applicant was convicted and sentenced as an adult as Judge Lerve was not satisfied that immaturity was a significant factor in his criminal offending.
Having regard to paragraph 8.1.1(c) of the Direction, the custodial sentences imposed on the Applicant by the courts for his offending are an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved.[101]
[101] Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50].
In relation to the factors in paragraph 8.1.1(1)(d) and (e), the Applicant’s criminal offending was the consequence of a single incident during which he acted with two co-offenders and engaged in a violent assault against two victims.
On the basis of the evidence before it, and for the stated reasons, the Tribunal finds that the Applicant’s criminal offending is serious in nature, and this weighs against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction states
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 harms 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.
Paragraph 8.1.2(2) of the Direction provides that in assessing the risk that may be posed 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.the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; 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).
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to reoffend in accordance with paragraph 8.1.2(2)(a) of the Direction, the Tribunal finds that any similar reoffending by the Applicant in the future may involve serious physical harm to his victims.In addition to the harm to the Applicant’s victims, there is the significant financial cost to the community associated with emergency services and law enforcement activities of any future offending by the Applicant.
On the basis of the evidence before it, the Tribunal finds that the nature of the harm to individuals should the Applicant engage in similar criminal offences is serious.
Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct in accordance with paragraph 8.1.2(2)(b) of the Direction, the Tribunal finds that the Applicant has taken full responsibility for his offending, and has expressed his remorse for the violent offences he committed. The Applicant claims to understand the seriousness of his offences and says he regrets his actions and their impact on his victims.
The Applicant contends that there is little likelihood of him committing violent criminal offences in the future as he has matured in the past four years and has become ‘mentally, physically and spiritually stronger’. The Applicant’s claims are supported by JH who described the Applicant as mature for his age. The evidence before the Tribunal that the Applicant complied with his strict bail conditions when he was on bail for a period of two years from October 2017 to December 2019, and that he worked full-time five days a week, supports a finding that the risk of the Applicant re-offending is low. This is also indicated by the evidence that his behaviour in gaol was good, that he initiated a successful fitness training program and taught and mentored other inmates, he did not receive any of disciplinary notifications, and he received positive reports in relation to his work.
The Applicant has an offer of paid full-time employment working with JH, and his brother is also confident he can arrange for him to be employed. He also has arranged secure and stable accommodation either with his brother or JH. These are protective factors against the Applicant re-offending when he is released from gaol.
On the basis of the evidence before it and taking into account available information and evidence on the risk of the Applicant re-offending and his rehabilitation, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is at the low end of the scale. However, in the context of the potential serious physical harm to the Applicant’s victims should he engage in the same or similar violent criminal conduct in the future, the Tribunal finds that although the risk is limited, it is not acceptable.
For the reasons above and applying the guidance in paragraphs 8.1.1 and 8.1.2 of the Direction, Primary Consideration 1 weighs on balance against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 2 – Family violence committed by the non-citizen
This Primary Consideration is not relevant in the Applicant’s circumstances as his offending does not include acts of family violence.
Primary Consideration 3 – The best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction requires decision-makers to make a determination whether revocation is in the best interests of the child. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made: paragraph 8.3(2). If there is more than one child affected, the Tribunal must consider the interests of each child individually to the extent that their interests may differ: paragraph 8.3(3).
In considering the best interests of the child, paragraph 8.3(4) relevantly requires the following factors be considered:
(a) The nature and the 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 the 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) …
(h) …
The evidence before the Tribunal is that the Applicant’s nephew RTL, aged two years, his niece HL, aged one year, and his cousin, aged four years, are minor children whose interests must be considered in determining whether there is ‘another reason’ to revoke the Mandatory Visa Cancellation Decision. The Tribunal has considered the interests of RTL, HL and the Applicant’s cousin individually and cumulatively as follows.RTL
Having regard to the factors in paragraph 8.3(4)(a), the evidence before the Tribunal is that the Applicant has a very close relationship with RTL who is also his godson. DSY’s evidence is that RTL ‘still knows and loves his uncle’ even though he has been incarcerated for more than a year and he ‘recognises him and talks to him during video visits, knows his voice when he calls and is the happiest little boy when finally seeing him in person.’ Due to the COVID-19 restrictions and RTL living in Melbourne, he has only visited the Applicant in gaol on one occasion in recent months, however he is in regular contact with him via phone and video calls. Whereas the Applicant has not been physically present in his nephew’s life since he entered juvenile detention in December 2019, it is obvious that they have maintained a close relationship.
In relation to the factors in paragraph 8.3(4)(b) and (c) the evidence is that the Applicant and his nephew have a very close relationship, and there is potential for him to play a positive role in his life in the years until he reaches adulthood. As the Applicant intends to relocate to Victoria, he will have opportunities to see his nephew when he visits his brother and sister-in-law or when they visit him.
Having regard to the factors in paragraph 8.3(4)(d), (e) and (f), the Applicant’s ongoing physical separation from his nephew will likely have an impact on him as the evidence is that he loves his uncle and is always pleased to see him. RTL is however in the primary care of his parents who are responsible for his upbringing and for providing him with his daily needs. The impact on RTL of his separation from the Applicant could be mitigated by regular phone and video calls, which is how they have stayed in contact during his incarceration in gaol and immigration detention. There also is the possibility for the Applicant’s brother to take RTL to New Zealand to visit the Applicant.
HL
With respect to the Applicant’s niece, having regard to the regard to the factors in paragraph 8.3(4), the evidence before the Tribunal is that the Applicant was incarcerated when she was born, and he has only met her in person on one occasion. She has two parents who provide care for her, and the Applicant would be able to continue to develop his relationship with her through phone and video calls and other forms of electronic communication. It also remains open for the Applicant’s brother to take his daughter to visit the Applicant in New Zealand.
Cousin
With respect to the Applicant’s cousin, having regard to the regard to the factors in paragraph 8.3(4), the evidence before the Tribunal is that he is not aware that the Applicant has been incarcerated. This indicates that the Applicant does not have the same degree of contact and closeness with his cousin as the Applicant has with his nephew. The Applicant’s cousin is receiving his primary care from his parents, and the Applicant has not had physical contact with his cousin since he was incarcerated in December 2019. However, once the Applicant is released he will likely have greater opportunities to strengthen his relationship with his cousin.
Applying the guidance in paragraph 8.3(4) of the Direction, the Tribunal finds that Primary Consideration 3 weighs strongly in favour of revocation of the Mandatory Visa Cancellation Decision as it is in the best interests of the Applicant’s nephew, niece, and cousin, individually and cumulatively, for him to have his visa reinstated and be permitted to remain in Australia.
Primary Consideration 4 – The expectations of the Australian community
Paragraph 8.4 of the Direction states:
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.
2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)…;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature …;
(d)…
(e)…
(f)…
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) 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.

The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which is analogous to paragraph 8.4 of the Direction, in FYBR and Minister for Home Affairs (‘FYBR’)[102]. The majority (Charlesworth and Stewart JJ) concluded as follows:
104. Paragraph 11.3 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[103] 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.[104]
105. However, the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[105] It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of “appropriateness”.[106]
[102] [2019] FCAFC 185.
[103] Charlesworth J at [66]; Stewart J at [91].
[104] Charlesworth J at [67]; Stewart J at [104].
[105] Charlesworth J at [76].
[106] Stewart J at [97].
The effect of paragraph 8.4 is that it imputes to the Australian community the expectation that non-citizens who have permission to remain in Australia will obey Australian laws. The question to be addressed does not involve an inquiry into what the Australian community does or does not expect, because that is normatively expressed in the terms of the consideration: paragraph 8.4(4). Rather, the relevant inquiry is ‘whether it is appropriate to give more or less weight to a deemed community expectation’ of non-revocation of a mandatory visa cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[107] As a normative expression, this consideration indicates the likelihood that community expectation will in most cases lead to non-revocation, without dictating an inflexible conclusion. The question for a decision-maker is the weight to be attached to this consideration.
[107] Charlesworth J at [77].
Having regard to the expectations of the Australian community as stated in paragraph 8.4 of the Direction, the Applicant has breached numerous Australian laws and has been convicted of multiple offences in Australia, including a number of very serious offences. The Applicant’s offences include Common assault resulting from him shoulder charging a female. As recognised by paragraph 8.4(2)(c) of the Direction, this should generally result in the cancellation of the non-citizen’s visa. Accordingly, under paragraph 8.4(1) of the Direction the Australian community would have an expectation that the Applicant’s visa should remain cancelled due to his violent and serious offending.
Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account the nature, seriousness and impact of the Applicant's criminal offending, and the duration of his residency in Australia, the Tribunal finds that Primary Consideration 4 on balance weighs against revocation of the Mandatory Visa Cancellation Decision.
OTHER CONSIDERATIONS
While the primary considerations carry particular weight, the Direction acknowledges at paragraph 9 that ‘other considerations’ must be taken into account by the decision-maker where relevant. Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection[108]at [23]:
... Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[108] [2018] FCA 594.
The ‘other’ considerations relevant to the Applicant’s circumstances are considered in the following paragraphs.
Extent of impediments if removed from Australia
The Direction states in paragraph 9.2:
(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.
Having regard to the factors in paragraph 9.2(1)(a), the evidence before the Tribunal is that the Applicant is 22 years of age and is generally in good physical health. His evidence is that he would like to access psychological treatment if released into the community. If he were to seek out such treatment or other counselling in the future, he would be able to readily acquire it as a New Zealand citizen.
Guided by paragraph 9.2(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on his return, as he lived in New Zealand until the age of 15 years and is familiar with life in his home country. It will however take time for him to readjust to life in a country in which he has not lived since he was teenager. The Applicant’s evidence is that he has family members in New Zealand, including his father who can offer him accommodation, and his siblings with whom he has a good relationship.
Having regard to paragraph 9.2(1)(c), the Tribunal finds that the Applicant will have the same access to government services as all New Zealand citizens including health care, welfare benefits and social services. The economic and employment opportunities in New Zealand are similar to those in Australia. The Applicant has worked in the retail sector and in demolition in Australia, and he would likely find similar employment in New Zealand.
Having regard to the evidence before it, the Tribunal finds the Applicant will face hardship if he is required to establish himself in New Zealand, having not lived there since he was a teenager. This hardship will be exacerbated by the emotional distress he will suffer due to his separation from his brother and nephew who will remain in Australia. Accordingly, guided by the factors in paragraph 9.2 of the Direction, the Tribunal finds that this consideration weighs in favour of the revocation of the Mandatory Visa Cancellation Decision.
Impact on victims
The Direction states in paragraph 9.3:
1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness
The impact on victims of a decision to revoke the cancellation of a visa requires the decision-maker to direct attention to the impact on the victim of the Applicant being allowed to remain in Australia. Generally, this consideration will weigh against the Applicant due to the harm caused by them to the victims of their offending.
Whilst the evidence is that the victims of the Applicant’s offending, particularly TN, have experienced ongoing physical impacts, there is no information available as to how non-revocation of the Mandatory Visa Cancellation Decision would impact them. The Tribunal finds that this other consideration is of neutral impact in assessing the impact on the Applicant’s victims of a decision to revoke the Mandatory Visa Cancellation Decision.
Links to the Australian community
Paragraph 9.4 of the Direction requires decision-makers to have regard to paragraphs 9.4.1 to 9.4.2 below.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1 requires consideration of the strength, nature and duration of the Applicant’s family and social ties to Australia:
1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2)Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community
(b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Having regard to paragraph 9.4.1(2)(a) of the Direction, the evidence before the Tribunal is that the Applicant has resided in Australia since 2016, having arrived in Australia at the age of 15 years. The Applicant completed his schooling in Australia and engaged in limited periods of paid and unpaid employment. The Applicant commenced offending in 2017 when he was aged 16 years, less than 18 months after his arrival. The Applicant has been in criminal custody and immigration detention for nearly two years, and has been the subject of the time and resources of police and the courts at the expense of the Australian community.
In relation to the factors in paragraph 9.4.1(1) and 9.4.1(2)(b) of the Direction, the Applicant has strong family ties in Australia, specifically his brother, sister-in-law, nephew, niece and cousin. The evidence is that these family members would suffer considerable emotional distress if he were returned to New Zealand.
On the evidence before it, the Tribunal is satisfied that Applicant’s family members, who are Australian citizens or have a permanent right to remain in Australia, would be significantly adversely impacted if the Applicant’s visa is not reinstated.
Impact on Australian business interests
The Applicant does not claim that any Australian business interests would be affected by his removal to New Zealand. Accordingly, the Tribunal has given the factors in paragraph 9.4.2(3) no weight.
On the basis of the evidence before it, and having regard to the factors in paragraph 9.4, particularly the strength and nature of the Applicant’s family ties in Australia, the Tribunal finds that this consideration weighs strongly in favour of revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Considerations 1 weighs against revocation of the Mandatory Visa Cancellation Decision. The nature and seriousness of the Applicant’s criminal offending is very serious, particularly as his victims sustained significant injuries. Despite the low risk of him committing future criminal offences, the nature and seriousness of the harm his re-offending would cause to his future victims is such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 3 weighs strongly in favour of revocation of the Mandatory Visa Cancellation Decision. It is in the best interests of the Applicant’s nephew, niece and cousin for him to remain in Australia. Primary Consideration 4 on balance weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that the Applicant’s serious offending should cause him to forfeit the privilege of remaining in Australia.
In regard to the relevant Other Considerations, the impediments the Applicant will face on return to New Zealand and his strong links to the Australian community weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
DECISION
The Reviewable Decision dated 12 April 2021 to refuse to revoke the Mandatory Visa Cancellation Decision dated 15 May 2020 is set aside and in substitution the cancellation of the Applicant’s Special Category (Class TY) (subclass 444) visa is revoked.

131. I certify that the preceding 130 (one hundred and thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk.

....................................[sgd]...................................
Associate
Dated: 7 September 2021

Date(s) of hearing:

3-4 August 2021

Date final submissions received

27 July 2021

Solicitors for Respondent:

Ms Subasha Prasad, Minter Ellison

[2021] AATA 3226

17 August 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Remedies

Natural Justice

Date(s) of hearing:	3-4 August 2021
Date final submissions received	27 July 2021
Solicitors for Respondent:	Ms Subasha Prasad, Minter Ellison