Leo'o Olo and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Leo’o Olo and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2774 (8 August 2024)
Division:GENERAL DIVISION
File Number: 2024/3139
Re:Alovale Junior Leo'o Olo
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Rebecca Bellamy
Date:8 August 2024
Place:Brisbane

The decision under review is affirmed.
...............[SGD]..................
Senior Member R Bellamy
CATCHWORDS
MIGRATION – cancellation of Class TY Subclass 444 Special Category
(Temporary) visa – where Applicant does not pass the character test – whether to exercise the discretion to cancel his visa – consideration of Ministerial Direction No. 110 – repeated serious violent offending – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
SECONDARY MATERIAL
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member R Bellamy
8 August 2024

A non-citizen who commits serious offences in Australia should expect to be removed. Mr Leo’o Olo is a non-citizen who inflicted grievous bodily harm on a stranger, hit his young son so hard it caused welts and bruising, and threw his ex-partner down with such force that she bounced into a wall. He should not expect to remain in Australia.
However, there is money to be made from non-citizens who are desperate to avoid deportation, and whose loved ones are prepared to contribute their savings to pay a lawyer or migration agent to take their case to the Tribunal. There is much less money, but a good measure of integrity, in competently assessing a non-citizen’s prospects of overturning a visa cancellation, and where their prospects are futile, advising them to keep their money. Where a non-citizen’s prospects are not futile, a lawyer or migration agent who takes their case should present an honest case that focusses on matters that favour the non-citizen and carefully deals with matters that do not. Witnesses should be proofed properly to elicit relevant information and drive home their duty to be truthful. Poor proofing leads to contrived or deficient evidence and creates a risk that information that favours the non-citizen will remain unknown unless a curious Tribunal uncovers it.
Mr Leo’o Olo did not benefit from the efforts of his lawyers and lay witnesses to manipulate the Tribunal. The Tribunal is concerned with credible evidence and reasonable inferences. It is not persuaded by lies, speculation or exaggeration. Mr Leo’o Olo is going back to his country of origin. It is not a country that is poor, unstable, war torn, barbaric or oppressive. It is New Zealand.
I am required to explain how I reached my decision. This is an expedited matter, and one of the Tribunal’s statutory objectives it to deal with matters efficiently. I will not waste time and Tribunal resources, which are public resources, addressing each and every disingenuous utterance made on the Applicant’s behalf. If that results in an appeal, it would create an opportunity for the Federal Court to provide clarity in this jurisdiction about the extent to which the Tribunal is required to engage with material that is obviously lacking in merit, particularly in circumstances where the sheer volume could raise a suspicion that there was an intention to create appeal points.
The Applicant is a 25-year-old citizen of New Zealand who came to Australia on a Class TY Subclass 444 Special Category (Temporary) visa (“visa”) in 2013 when he was 14 years old.[1] Section 501(2) of the Migration Act 1958 (Cth) (“the Act”) provides that the Minister may cancel a visa that has been granted to a person if:
· the Minister reasonably suspects that the person does not pass the character test; and
· the person does not satisfy the Minister that the person passes the character test.
[1] Exhibit G1, G2, page 176.
The character test is contained in s 501(6) of the Act. Section 501(6)(a) provides that a person will not pass the character test if they have “a substantial criminal record”. Section 501(7)(c) of the Act relevantly provides that a person has a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. In January 2022, the Applicant was sentenced to a two-year term of imprisonment for grievous bodily harm.[2] He was granted immediate parole, however what matters for present purposes is the term of imprisonment to which a person was sentenced, not the amount of time they served in prison.[3] There is no doubt that the Applicant does not pass the character test. On 8 April 2024, a delegate of the Minister exercised the discretion under s 501(2) of the Act to cancel the Applicant’s visa. The Applicant was notified of this decision on 16 May 2024.
[2] Exhibit G1, G2, page 32.
[3] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
The Applicant applied to the Tribunal to set aside that decision. The hearing of the matter took place on 25, 26 and 29 July 2024. The Applicant gave evidence via video conference, as did his girlfriend. His mother, his girlfriend’s sister and his former employer gave evidence by telephone. Dr Emily Kwok, forensic psychologist, gave expert evidence by video conference. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
In the hearing, it became clear that the Applicant did not understand some of the words and phrases in his own statement.[4] There were also multiple words and phrases that appeared in several of the witness statements, including the Applicant’s, his partner’s and his partner’s relatives’. The reason for these discrepancies was not disclosed by any of the people involved, despite the Tribunal expressing concerns,[5] and some witnesses being asked how their statements came into being. In these circumstances, the Tribunal does not accept the Applicant’s assurance that his statement reflected his evidence, and the Tribunal regards all statements containing these discrepancies with caution. Further, many witness statements contained commentary or opinion that the witness was not qualified to give, or that was speculative or exaggerated. I am not persuaded by that sort of evidence.
[4] Transcript, page 6 lines 6 to 12; page 23 lines 37 to 43.
[5] Transcript, page 24 line 44 to page 25, line 23.
The Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.
Paragraph 5.2 of the Direction contains several guiding principles. Those principles, as far as they relate to this matter, may be summarised as follows:
·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.
·The safety of the Australian Community is the highest priority of the Australian Government.
·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.
·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.
·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.
·Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen'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.
·The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
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 sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account. They are:
(1)the protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. They are:
a)legal consequences of the decision;
b)extent of impediments if removed; and
c)impact on Australian business interests
Paragraph 7(2) of the Direction provides that Primary Consideration 1 – the protection of the Australian community from criminal or other serious conduct – is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
BACKGROUND
The Applicant was born in New Zealand in May 1999.[6] He came to Australia at age 14. He started smoking cannabis when he was 16 or 17 years old, and he smoked it a couple of times per week.[7]
[6] Exhibit G1, G2, page 176.
[7] Exhibit A3, ARM5, page 22.
In March 2017, the Applicant breached a good behaviour bond by committing contravene direction or requirement.[8] The facts of that offending are not before the Tribunal.
[8] Exhibit G1, G2, page 32.
In September 2017, the Applicant’s son, “Child A”, was born.[9] He had been in a relationship with Child A’s mother, “Ms K”, since he was 14 years old.[10]
[9] Exhibit A2, AM21, page 55.
[10] Exhibit A3, ARM5, page 23.
In October 2017, a Domestic Violence Order was made to protect Ms K, from him. It was served on him in person, and it was to remain in force until 8 October 2022. On 16 January 2018, he contravened the DVO. He and Ms K were at a shopping centre, and she gave him her phone to carry. They argued and she asked for her phone back. She asked multiple times and he refused to give it back. He then forcefully threw it on the ground, smashing it, and called her a “fucking slut”.[11]
[11] Exhibit G1, G2, pages 40 to 41.
The Applicant told Dr Kwok that he started using crystal methamphetamine (“ice”) at age 19. He and Ms K used it together several times per week until it “spiraled (sic) out of control”.[12] According to him, this incident occurred when he was under the influence of ice and cannabis, and he had not slept for days.
[12] Exhibit A3, ARM5, page 22.
In the hearing, the Applicant said he was addicted to methamphetamine, and he consumed it “probably three to four times a week”.[13] He said he did not know why he refused to give Ms K her phone or why he smashed it, but he acted out of anger. When he had not slept because of methamphetamine use, he had a “short fuse” and was prone to rapid mood changes.[14]
[13] Transcript, page 28, lines 12 to 15.
[14] Transcript, page 33, lines 1 to 31.
In November 2018, the Applicant contravened the DVO again by yelling abuse at Ms K in her home. He had come to visit Child A, who would have been 14 months old at the time.[15]
[15] Exhibit G1, G2, pages 42 to 43.
The Applicant’s daughter, “Child B”, was born in March 2019.[16]
[16] Exhibit A2, AM21, page 55.
The Applicant was dealt with for contravening the DVO in August 2019 and he was placed on a 12-month good behaviour bond.[17]
[17] Exhibit G1, G2, page 32.
Only two months later, in October 2019, he breached the bond by inflicting grievous bodily harm on a stranger in a car park. The victim was reversing from a car space outside a 7-Eleven store. Upon seeing the Applicant’s car positioned to turn into the adjoining car space, he stopped reversing to avoid hitting the Applicant’s car. He then drove back into the space. The Applicant wound his window down and started cussing at the victim, saying “Can you fucking see bro?”, to which the victim responded “What?”. The Applicant and victim got out of their respective cars and the Applicant punched the victim to the right-hand side of his face. The victim threw a punch in return, hitting the Applicant in the face. The Applicant grabbed the victim by his shirt and hit him a few times to the left-side of his face. A scuffle ensured with more punches traded. The victim’s friend, who was with him, put himself between the two to break up the fight and asked the Applicant “What the fuck are you doing?”. The Applicant then walked into the 7-Eleven store.[18]
[18] Exhibit R2, SM1, pages 1 to 2.
The victim suffered multiple fractures and breaks. He required surgery for a broken jaw, and would have suffered permanent disfigurement without medical intervention.[19]
[19] Exhibit R2, SM1, page 2.
After the police tracked the Applicant down using CCTV footage, he told them he had recently started a course of prescription medication. When asked by police whether he felt bad about what he had done, he said “Yeah of course” and conceded that in hindsight, he would have “tried to keep the peace”.[20] In the hearing, he said, that when the victim got out of the car “and come towards me, it felt like he was coming to hurt me”, so he thought he needed to protect himself.[21]
[20] Exhibit R2, SM1, page 3, G2 page 44 to 45.
[21] Transcript, page 27, lines 24 to 27.
There is no evidence that the Applicant’s violent offending was contributed to by any prescription medication. There were four witnesses to the attack – the Applicant, the victim, a passenger in the Applicant’s car and a passenger in the victim’s car – as well as CCTV footage.[22] Yet the police report does not suggest in any way that the victim was the aggressor. To the contrary, the victim had moved his car to accommodate the Applicant, and the Applicant had yelled abuse at him. In the hearing, the applicant said that he was not under the influence of drugs when he committed this offence, although he had used drugs three days beforehand.[23]
[22] Exhibit R2, SM1.
[23] Transcript, page 29, lines 24 to 35; page 30, lines 10 to 13.
The Applicant became aware of the extent of the injuries he had inflicted when he was charged. According to him, he was sincere when he told the police he felt bad for what he had done. He did not mean for the victim “to get hurt that bad” and he was “sincerely sorry for what happened to him”. He did not “mean to cause him any harm or nothing like that”.[24]
[24] Transcript, page 27, lines 20 to 36.
When the police had located the Applicant to question him about the attack, they searched his home and found methamphetamine, cannabis, a water pipe and an electric grinder. He said the drugs were for personal use.[25]
[25] Exhibit G1, G2, pages 46 to 47.
In September 2021, a psychologist, Mr Sam Albassit, interviewed the Applicant and prepared a report at the request of his criminal lawyer.[26] The report was addressed to the presiding Magistrate (although it should have been addressed to the presiding Judge) at the Southport District Court, where the Applicant was to be sentenced for grievous bodily harm offence.
[26] Exhibit A2, AM25, page 76
By way of background, the Applicant’s father had been physically and mentally abusive to his mother in New Zealand. When he was five or six years old, his mother had left. The Applicant recalled his father using drugs and physically abusing him. His paternal grandparents and aunt often took him during the week to protect him.[27] When he was 13 years old, the government removed him from his father and contacted his mother, who was in Australia with her current husband. She arranged for him to come to Australia.
[27] Exhibit A3, ARM5, page 22.
According to Mr Albassit, the Applicant reported that, from a young age, he experienced symptoms of Post Traumatic Stress Disorder (“PTSD”), including recurring intrusive thoughts, lucid dreams, flashbacks, poor sleep, anger, vicarious trauma, intense distress, high heart rate, and rapid breathing when recalling traumatic events. He also reported symptoms of depression and anxiety including poor mood, lack of motivation, feelings of worthlessness, social isolation, poor concentration and memory, and low self-esteem.
Mr Albassit determined that the Applicant had a dual diagnosis of PTSD and Substance Use Disorder. He noted that a symptom of PTSD is hypervigilance whereby a person magnifies perceived threats and reacts with a “fight or flight” response. He opined that there was a direct and significant correlation between the Applicant’s offending and his “significant psychiatric/psychological conditions”.
Mr Albassit reported that the Applicant acknowledged his wrongdoings, expressed regret and remorse, and understood the link between his trauma and offending behaviour. He indicated that he was willing to engage in psychiatric and psychological treatment. Mr Albassit thought the prognosis for rehabilitation was positive if the Applicant were given the opportunity. He noted that the Applicant’s strengths included a good work ethic, a healthy intimate relationship, full-time employment, and supportive friends. In the hearing, the Applicant said he thought he was with Ms K at the time of the report, but he denied having described their relationship as healthy.[28]
[28] Transcript, page 57, lines 20 to 26.
Mr Albassit said it typically takes up to 24 months of intensive therapy to treat PTSD and to achieve optimal results. He developed a comprehensive treatment plan to address the Applicant’s psychiatric and psychological conditions and reduce the risk of further offending. He nominated providers and offered to assist the Applicant to comply with the treatment plan. The plan included:
·a psychiatric assessment followed by regular appointments;
·antidepressants with regular reviews;
·fortnightly consultations with a General Practitioner to assist the Applicant to remain vigilant with his treatment regime and keep him accountable;
·monthly substance screening analysis;
·rehabilitation courses and counselling addressing anger management, self control, intensive trauma related Cognitive Behavioural Therapy, and anxiety and depression; and
·ongoing engagement with the Gold Coast University Hospital which provides mental health triage and drug and alcohol rehabilitation services.
In the hearing, the Applicant confirmed that, when he saw Mr Albassit, he did understand the link between his trauma and offending, and he did recognise the potential consequences of his behaviour.[29] He confirmed that he had read the report including the recommendations in the treatment plan. He was asked if he had thought “all those things were a good idea” and he said he had.[30]
[29] Transcript, page 74, lines 17 to 24.
[30] Transcript, page 37, line 40 to page 38, line 15.

The Applicant saw his General Practitioner and got a Mental Health plan (which provides subsidised consultations with a psychologist). He also got antidepressants. That is all he did.[31]
[31] Transcript, 38, lines 25 to 34; page 39, lines 22 to 33.
In January 2022, the Applicant was sentenced to two years’ imprisonment for grievous bodily harm, and he was granted immediate parole.[32] I do not have the sentencing remarks before me, so I cannot tell why he was given the benefit of immediate release in circumstances where he committed grievous bodily harm in breach of a good behaviour bond and it was not his first offence involving aggression. However, it is reasonable to infer that Mr Alabassit’s report was taken into account by the learned sentencing Judge. That was the purpose of the report, after all. The Applicant told the Tribunal that he had understood at that time that he had been sentenced to prison and that he was under an obligation to behave himself.[33]
[32] Exhibit G1, G2, page 32.
[33] Transcript, page 58, lines 30 to 38.
The Applicant sought to explain his failure to follow the treatment plan on the basis that:
·he did not “know how to reach out”, he was he was “still in a bad headspace”, he was “was still really anxious at the time” and “didn’t know how to talk to anyone”;
·he was addicted the methamphetamine; and
·in 2021 COVID was still around and, due to lockdowns “most services weren’t available”.[34]
[34] Transcript, page 38, lines 17 to 24; page 39, lines 34 to 39.
I accept the Applicant was addicted to methamphetamine, but I do not accept his excuses. First, Mr Albassit’s report does not indicate that the Applicant was in a bad headspace. On the contrary, it indicates that the Applicant had a job and a supportive family, plus insight and willingness to address his problems. He did, in fact, know how to talk to someone, demonstrated by the fact that he did exactly that with Mr Albassit. He did not need to know how to “reach out”, as Mr Albassit had offered to help him engage with the recommended service providers. Second, some of the recommended treatment was aimed at helping the Applicant to overcome his drug addiction. Third, the Applicant did not provide any concrete evidence of any of the recommended services being denied to him because of COVID measures. Indeed, it is common knowledge that there were very few COVID lockdowns in Queensland and that many services were being provided remotely by late 2021, because of the social distancing rules that had been introduced in early 2020. When his evidence was challenged, he recanted and shifted his evidence, claiming that he meant social distancing was the problem. He did, however, concede that he did not “try hard enough”.[35]
[35] Transcript, page 39, lines 15 to 20.
On 15 March 2022, the Applicant was sentenced for the drug offences to five months’ imprisonment, suspended for 12 months.[36]
[36] Exhibit G1, G2, page 32.
Around the middle of 2022, the Applicant met, and started a casual intimate relationship with, Ms Jessie Parke.[37]
[37] Transcript, page 9 line 40 to page 10 line 13.
On 18 July 2022, the Applicant received a letter from the Department that contained the following:
“The purpose of this notice is to inform you that consideration will be given to whether to cancel your visa on character grounds…Under s501 (2) of the Act, a Minister administering the Act or their delegate (the decision-maker) may cancel a visa held by a person if they reasonably suspect the person does not pass the 'character test', and the person does not satisfy the decision-maker that they pass the character test…The Department of Home Affairs (the Department) holds information about your criminal history, which indicates that you have a substantial criminal record within the meaning of s501 (7) of the Act, and that as a result you do not pass the character test…”[38]
[38] Exhibit G1, G2, pages 54 to 58.
After the Applicant received this letter, he hired a lawyer and paid him a fee but, according to him, he went to gaol and the lawyer was unable to contact him.[39] However, he did not go to gaol until nine months after receiving the letter, when he breached his parole. In the hearing, he conceded that he knew, at that time, that the threat of deportation was hanging over him due to his criminal offending.[40]
[39] Transcript, page 35, lines 5 to 11.
[40] Transcript, page 35, lines 13 to 18.
The Applicant’s parents (mother and step-father) were aware of the letter. His mother understood that “they’re trying to cancel his visa” and his step-father took him to “seek help and get legal advice about it”.[41]
[41] Transcript, page 139, lines 36 to 44.
According to the Applicant’s mother, she thought he was associating with people who had a bad influence on him, although she was not aware that he was using methamphetamine. She and her husband had meetings with the Applicant and Ms K to try to help. She was not precise about when this occurred or why, but the Applicant said it related to his drug use and offending.[42] His mother said she had tried to get him to engage in counselling, and she even offered to take him. He would agree to do it, and would claim he had booked himself in, but he never actually did it.[43]
[42] Transcript, page 73, lines 30 to 47.
[43] Transcript, page 130, lines 7 to 14; page 131, lines 5 to 15.
Around three months after receiving the letter about his visa, in October 2022, the Applicant assaulted his (then) five-year-old son. He was minding Child A and Child B while Ms K was at work. The police report states that the children were playing and they started to hit each other. The Applicant hit Child A on the side of his face, leaving a red mark that Ms K noticed when she arrived home. The next day, the injury had developed into bruising and welts. Ms K reported it to the police.[44]
[44] Exhibit G1, G2, page 38.
The account the Applicant gave in the hearing was similar. He said the children were arguing over an iPad and he tried to calm the situation. He only recalled seeing Child A hit Child B, not both hitting each other. He walked over from around four meters away and “smacked” Child A across the face. He knew it was wrong to do that. He said he “would have been” affected by drugs and he acted out of anger. He said the way he was brought up was similar and he “didn’t know better at the time”. He said he “didn’t mean to hurt him in any way” and he reacted in the wrong way.[45]
[45] Transcript, page 12, lines 30 to 40; page 30, line 20 to page 31, line 31; page 34, lines 1 and 2.
It is significant that the Applicant committed this offence while on parole and subject to a suspended sentence, with his visa at risk, in circumstances where he had failed to take up an offer from a psychologist to facilitate rehabilitative treatment including for childhood trauma and anger management. Even after committing this offence, he did not engage in treatment.
The Applicant’s parole was not cancelled after this offence. However, it was cancelled after the next domestic violence offence.
In March 2023, the Applicant went to Ms K’s home to visit the children. There was a heated argument and he started yelling in her face. She felt threatened and pushed him away. He approached her aggressively and threw her onto the side of the bed so hard that she bounced into the wall, making a hole in it. Ms K suffered multiple scratches to her neck and back, and bruises to her legs.[46] The Applicant was charged with assaults occasioning bodily harm (domestic violence offence) and wilful damage (domestic violence offence). His parole was cancelled and he served the balance of the sentence for grievous bodily harm in prison. In September 2023, while he was in prison, he was convicted and sentenced to imprisonment for nine months but, once again, the sentence was suspended. The Applicant now says he is remorseful and that he was affected by drugs when he committed that offence.[47]
[46] Exhibit G1, G2, page 34.
[47] Transcript, page 29, line 15 to 22.
I accept that the Applicant stopped using drugs when he was imprisoned and that he applied to do rehabilitation courses and was put on a waitlist.
In January 2024, the Applicant was released. He continued to abstain from methamphetamine, but he used prescription cannabis for his anxiety, to help him sleep.[48] He did not make any efforts to engage in any form of counselling or rehabilitation. His excuse for that was “at the time that I had got out of jail I had – I went straight into full-time work...so I was real busy with just working, kids…at the time I probably wasn’t thinking about it”.[49] He expanded, on that, saying:
“Well, the four, five months I was – I’d gone out and I felt I was just catching up with my family again and spending time with my family. I didn’t really think much of it at the time, and I was busy with work”.[50]
[48] Transcript, page 91, lines 15 to 18.
[49] Transcript, page 61, line 17 to 24.
[50] Transcript, page 77, lines 5 to 9.
At that time, the Applicant was not together with Ms K, and he saw his children on weekends when they stayed with his parents.[51] He lived with his parents and, outside work, he spent time with his younger siblings, including taking them to football practice and games. It is clear the Applicant was not interested in rehabilitation, once he was released to the community.
[51] Transcript, page 13, lines 9 to 26.
According to the Applicant, in March or April 2024, he asked Ms Parke to be his partner and he then stayed at her home four or five days per week.[52]
[52] Transcript, page 11, lines 35 to 41; page 15, lines 13 to 21.
In April 2024, the Applicant’s visa was cancelled, and on 16 May 2024, he was notified of the decision and taken into immigration detention. On 21 May 2024, his current lawyer applied to the Tribunal, on his behalf, for a review of the decision. On 28 May 2024, the parties were notified that the hearing of this matter would take place on 25 and 26 July 2024.
Once in immigration detention, the Applicant embarked on a last-minute flurry of rehabilitative activity. First, he started participating in SMART Recovery online sessions. On 10 June 2024, he engaged with a provisional psychologist, Mr Paul Grady.[53] On 13 June 2024, he enrolled in a Lives Lived Well course.[54] He also engaged in some online courses. By the time of the hearing, he had done the following courses:
[53] Exhibit A3, ARM3, pages 13 to 19.
[54] Exhibit A6.
·PTSD: Dealing with Shock and Trauma;
·Family and Domestic Violence;
·Fundamentals of Domestic Violence;
·Anger Management and Conflict Resolution;
·Positive Parenting Skills and Techniques;
·Drugs and Alcohol – Awareness and Prevention;
·Social Awareness and Relationship Skills;
·Mindfulness for Anger Management;
·Circuit Breaker; and
·Understanding Methamphetamine Addiction Disorder.[55]
[55] Exhibit A3, ARM1 pages 1 to 10; ARM2; pages 10 to 13.
He also applied to partake in the “Changing for Good - Men's Behaviour Change” program, and on 16 July 2024, and he received a notice that he had been waitlisted for the program.[56]
[56] Exhibit A5, pages 1 to 4.
He engaged with Lives Lived Well via Telehealth. Following some introductory sessions, he had a session on “Harm minimisation/Brief Intervention/Psychoeducation” and a session on “AOD[57] counselling support-Continuity of goals”. He had also engaged in least six sessions with Mr Grady. After Dr Kwok assessed him, she recommended a Cognitive Behavioural Therapist in Nerang who specialises in PTSD. The Applicant has engaged with that person in the last couple of weeks before the hearing.[58]
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
[57] ‘AOD’ meaning Alcohol and Other Drugs.
[58] Exhibit A4.
Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community. The Direction provides that “serious conduct” includes behaviour or conduct that does not constitute a criminal offence.
In determining the weight applicable to this Primary Consideration, paragraph 8.1(2) of the Direction requires me to give consideration to:
a)The nature and seriousness of the Applicant’s conduct to date; and
b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to the following relevant matters:
(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;
(b)…
(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 impact of the offending or other conduct on any victims and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)…
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).[59]
[59] The Direction, Paragraph 8.1.1(1).
The Applicant’s assaults on Ms K, their son and the stranger at the shops are viewed very seriously because they are violent crimes. The grievous bodily harm attracted a two-year sentence of imprisonment, indicating the seriousness with which the court regarded the offence. The assaults against Ms K and his son also come within the categories of violent crimes against a woman or a child and family violence. These offences are viewed very seriously regardless of the sentence imposed.
The victim of the grievous bodily harm suffered serious damage to his face that required surgery.
The Applicant’s attack on Ms K, where he threw her so hard into the bed that she bounced into a wall, must have been terrifying as well as physically painful. The applicant acknowledged that when he refused to give Ms K’s phone back it would have been frightening.[60]
[60] Transcript, page 32, lines 24 to 26.
The assault on Child A caused a physical injury. It must have hurt a lot at the time and afterwards. It is not the case that, without thinking, the Applicant slapped his son away to stop him from hurting his daughter. He walked four meters towards him and hit him so hard it left welts. The assault must have demonstrated to Child A that he was not safe in his own home with his own parent. Child A was old enough that he would remember this assault. Child A was present in the home when the Applicant yelled abuse at Ms K and when he assaulted Ms K. Children who witness domestic abuse are, by virtue of that, victims of domestic abuse. There is a lack of evidence about the psychological and emotional impact of the Applicant’s crimes on Child A.
The Applicant’s offending was reasonably frequent, and the cumulative effect of his repeated offending was that three members of the Australian community suffered harm, and both his children witnessed family violence.
The Applicant committed two separate assaults after being formally warned about the consequences of further offending in terms of his migration status.
The Applicant’s over-all offending is very serious.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Here I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[61]
[61] Paragraph 8.1.2(1) of the Direction.
I must have regard to the following relevant factors on a cumulative basis:
(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 available information and evidence on the risk of the non- citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.[62]
[62] Paragraph 8.1.2(2) of the Direction.
The harm from repeated offending includes grievous bodily harm and serious psychological and emotional harm. Compelling countervailing considerations would be required to outweigh a risk of further family violence. Any risk of grievous bodily harm being inflicted on a member of the Australian community is unacceptable. I am satisfied that there is a material risk of further violent offending for the reasons that follow.
The Applicant’s offending was persistent. Court orders, the threat of imprisonment and the threat of deportation did not stop him.
He did not take drugs or commit any offences in the four months when he was in the community between his release from prison and his detention.[63] However, that alone does not mean much given his criminal history is quite spaced out, with months going by between offences. I accept that the Applicant has ceased contact with anti-social peers who may have encouraged his drug use. However, the Applicant committed the violent offences on his own: no-one else encouraged his aggression.
[63] Transcript, page 36, lines 36 to 46.
I also accept that the Applicant found prison very hard, and he converted to Islam there. He understands that Islam does not allow drugs, alcohol or violence.[64]
[64] Transcript, page 77 lines 10 to 25.
The Applicant has expressed remorse for his offending, and he has now done the various courses I mentioned above and engaged with three psychologists. I accept that he finds counselling helpful, especially talking to someone about his childhood trauma. Paul Grady provided a letter that indicated that he had been working with the Applicant on issues surrounding his offending and drug use, and that the Applicant now accepts he needs psychotherapy to fully recover from chronic childhood trauma.[65] Mr Grady opined that the Applicant’s “prospects for remaining law abiding in the future appear to have improved considerably since his imprisonment, immigration detention and subsequently learning to live without using drugs as self-medication”. Mr Grady is a treating provisional psychologist, not a forensic psychologist. He has known the Applicant for a matter of weeks and he did not have access to comprehensive information about his offending and related matters. Dr Kwok stated that his assessment was evidence that “may not be suitable for a treating psychologist to give”.[66] I am not satisfied that he was well placed to make that assessment and I disregard it.
[65] Exhibit A3, ARM3, page 13.
[66] Transcript, page 196, lines 15 to 21.

The Applicant claimed his recent treatment had helped him in a lot of ways. For example:
“learning how everyone that’s affected by [violence], especially my children who’s witnesses it, or the trauma they’ve witnessed, and I learnt a lot about drug addiction as well. I learnt how addictive this drug was and ways to manage my cravings, and learn how to compliment it with treatment”.[67]
[67] Transcript, page 7 lines 1 to 5.
He referred to “just learning about myself - why I was like that” and understanding the impact of his behaviour on other people.[68] According to Ms Parke, the Applicant had spoken with her about:
“I guess, like, with the anger thing, like, the recognising the signs in himself and, like, ways to self-regulate and calm himself down, or, like, he spoke about, like, his triggers, mainly to do with – like, say, PTSD, that could put him into a headspace where he doesn’t want to be and how he can, like, self-regulate himself more”.[69]
[68] Transcript, page 7 lines 12 to 13.
[69] Transcript, page 119 lines 29 to 33.
I find the Applicant’s descriptions of his learnings rather superficial and general. His understanding of the impact on his victims was equally superficial. For example, he acknowledged that what he did to Child A was not the right way to discipline a child and that “it causes trauma”.[70] He conceded that Child A was upset at the time of the assault, but he was not aware of any longer-term emotional impacts.[71]
[70] Transcript, page 31 lines 20 to 27.
[71] Transcript, page 59, lines 7 to 18.
The Applicant always knew he was doing wrong at the time he committed each violent offence. Nor did he mean to hurt any of his victims. He has never condoned violence, yet he has acted violently.
I have the benefit of Mr Albassit’s report and a recent risk assessment prepared by Dr Kwok.[72] Both psychologists were of the view that, in the period when the Applicant was offending, he had been suffering symptoms of Post Traumatic Stress stemming from childhood trauma. Mr Albassit went as far as opining that the Applicant had Post Traumatic Stress Disorder, whereas Dr Kwok did not think his symptoms met the criteria.
[72] Exhibit A2, AM25, pages 76 to 86; A3, ARM5, pages 20 to 34.
Dr Kwok opined that drug use and post trauma symptoms can cause cognitive distortions, and that the most common one rising from trauma is the perception of threats where there are none. She reported that the Applicant had experienced flashbacks to childhood trauma during arguments with Ms K and he “erroneously and impulsively felt a need to react with violence”. She thought a similar thing happened when he committed grievous bodily harm. However, she noted that the Applicant hit Child A in a situation where he did not perceive any threat of harm. She thought that could have been learnt behaviour from his own father, which ties in with the Applicant’s evidence in the hearing that he did not know any better because that was the way he was brought up.[73]
[73] Transcript, page 31 line 20 to 31.
According to Dr Kwok, the Applicant’s drug use and post traumatic symptoms are directly linked to his offending. It is apparent that learned behaviour and an underlying preparedness to physically attack people - having done so on three separate occasions, in different circumstances, involving three different victims, in response to different behaviours – are also factors.
Dr Kwok reported that the Applicant is not currently experiencing any trauma symptoms. However, as they were long-standing, she would like to see how he goes in the outside community before determining that he is truly in remission.[74]
[74] Transcript, page 184, lines 20 to 38.
Dr Kwok considers that the Applicant requires intensive therapy for up to 24 months with a clinical psychologist who is experienced in treating PTSD. She also recommended he participate in therapy groups for drug addiction to prevent relapse. She said if the Applicant’s mental health conditions remained untreated, he would be at a high risk of cannabis and crystal methamphetamine abuse, emotional and behavioural dysregulation, violent and aggressive behaviours, and dysfunctional interpersonal relationships. She thought he would cope poorly if problems were to arise in his current relationship as a result of his preoccupation with fears of abandonment or rejection and sensitivity in relationships.
She considered his family and other prosocial supports to be protective factors that buffer the negative effects of his post trauma symptoms. Dr Kwok assess the risk of re-offending as moderate and trending toward low. If the Applicant were to comply with the recommended treatment, the risk would reduce to low, and if he were to stop treatment, the risk would increase. Dr Kwok’s assessment was not challenged by either party. I accept it.
The Applicant claimed that he is committed to making positive changes and he would continue with treatment to address his mental health and offending outside detention, either in Australia or New Zealand. He said he will keep seeing both psychologists and engage with Lives Lived Well, SMART Recovery and a Mens group he has applied to.[75] Dr Kwok thought his engagement in online courses that are relevant to his particular rehabilitative needs, and psychological therapy, indicated a willingness to address his criminogenic needs. She thought he would continue treatment in the community.[76]
[75] Transcript, page 9 lines 1 to 6.
[76] Exhibit A3, ARM5, page 33.
However, the Applicant has previously had multiple opportunities to engage in treatment in the wider community and every time, he chose not to. He applied for courses in prison, which could have given the impression that he wanted treatment. However, that impression would have been incorrect: once back in the community, unaffected by drugs, he did not seek treatment. He denied that his motivation for now seeking treatment, where he did not seek treatment before, was to get his visa back, claiming his recent engagement in treatment was due to it being easier to access help in detention. However, he conceded that many of the courses are online.[77] I reject his explanation. I am satisfied that the Applicant engaged in treatment in an effort to make a positive impression with the Tribunal because he wants his visa back.
[77] Transcript, page 61, lines 1 to 15.
Dr Kwok agreed that there could be reasons other than a desire to address criminogenic needs for the Applicant’s recent engagement in counselling and courses. However, she thought his engagement in these activities had increased his insight, which would increase his willingness to continue treatment. She indicated that research shows that even people who engage in treatment for non-genuine reasons, such as mandatory treatment, benefit from it, although if they are not truly engaged “we definitely do see early termination”.[78] It was of concern to her that the Applicant did not seek treatment earlier, hence her emphasis on the need for treatment if he were to return to the community this time.[79]
[78] Transcript, page 193, line 1 to page 194, line 8.
[79] Transcript, page 192, lines 12 to 18.
I am not satisfied that, if the Applicant gets his visa back, he will engage in the required treatment, even if he initially intends to. I think it is likely that he will prioritise other things in his life. I am not confident that his family or partner would make much difference.
His parents were previously unable to get him to engage in counselling and he was able to hide his methamphetamine use from them. He is now closer to his mother and, as a nurse, she can arrange help for him. However, she did not appreciate the seriousness of his violent offending. She did not concede that he attacked Ms K, only that Ms K claimed that he hit her, and she described the grievous bodily harm as the Applicant having “got into a fight”.[80] She indicated that she is very busy with a full-time job and six children.[81]
[80] Transcript, page 135, line 14 to 29. Transcript, page 137, line 40 to page 138, line 8.
[81] Transcript, page 136, lines 34 to 40; page 138, lines 17 to 22.
Ms Parke recalled that she was aware of the notice that the Applicant’s visa could be cancelled. She did not react by encouraging the Applicant to get treatment. Rather, she and the Applicant discussed him becoming a citizen to avoid deportation, as the following exchange shows:
Witness: “we spoke (sic) becoming – like, so he can become a citizen so that like, to fix everything up…
Tribunal: And how does becoming a citizen fix all of it?
Witness: I don’t know. We don’t know. I don’t know. I’ve never, like, been in this position. But I would assume that it would help.
Tribunal: So where did you get the idea that becoming a citizen would fix it or help?
Witness: I didn’t say that. We were just talking about, like, the future moving forward. Like, because we do want to be - -
Tribunal: I’m pretty sure you did say that, that you were talking about him becoming a citizen to fix it?
Witness: Well, hopefully one day he can be, so that they can’t – people can’t take him away.
Tribunal: So they can’t throw him out for committing offences. Is that what you’re saying?
Witness: No. I’m not saying that.
Tribunal: All right. Explain what you’re talking about. Because you said you were thinking about him becoming a citizen to fix it all?
Witness: No. I didn’t mean to fix – okay, if I said that I’ll reword. We knew that he had to get character references. We thought that the solicitor had done – fixed it up – but they hadn’t. And we wanted, yes, in the future we want to plan for him to become a citizen.
Tribunal: For what purpose?
Witness: That was before we knew. Why does anyone want to become an Australian citizen?
Tribunal: You don’t ask me the questions. I ask you the questions. Answer the question?
Witness: So that he can be a part of this country and never be – I don’t think that he’s ever going to commit a crime again. I don’t think that. That’s not the reason why we would want him to become an Australian citizen. That is not the reason why.[82]
(Underlining added)
[82] Transcript, page 96, line 44 to page 97, line 36.
Ms Parke also knew about the Applicant’s assault on his son, although she described it as an “an instant reaction”,[83] yet in the hearing, she excused his failure to get help, saying sometimes it is hard for a man to seek help.[84] When asked if she would encourage him to engage in treatment in the community, she said she did not have to worry about that, as he would do it. She said she would always encourage someone to speak to a therapist, and she would do everything to keep the Applicant “on that path” as she thinks it is “important for everyone”.[85] However, a general appreciation of the benefits of counselling is not the same as a commitment to ensure the Applicant continues to engage in rehabilitative treatment.
[83] Transcript, page 98, lines 7 to 13.
[84] Transcript, page 108, lines 32 to 42.
[85] Transcript, page 109, lines 17 to 36.
I am satisfied that the risk that the Applicant will commit further offences if he is released to the Australian community is currently more than low and it is likely to increase. Primary Consideration 1 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
In considering the seriousness of the family violence engaged in by the non-citizen, I must consider the following factors, where they are relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence.[86]
[86] Paragraph 8.2(3) of the Direction.
The Direction defines family violence to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes them to be fearful. The Direction provides that a member of a person’s family includes a person who has, or has had, an intimate personal relationship with the relevant person.[87] Accordingly, Ms K was a member of the Applicant’s family at the relevant times. His refusal to give her phone back, and his destruction of it, exerted a degree of control over her and caused fear, so those were acts of family violence. His physical attack on her caused injury and must have caused fear as well. There is no evidence about whether he coerced, controlled or caused fear when he yelled abuse at her, so I am unable to find that his conduct constituted family violence. Committing acts of family violence in contravention of a protection order, which is what the Applicant did, adds to the seriousness of that conduct. The assault against Child A was obviously an act of family violence.
[87] Paragraph 4(1) of the Direction.
Three acts of family violence in five years is frequent, and there was a marked increase in seriousness over time. The Applicant harmed two of his family members. He did not commit any acts of family violence in the four months when he was most recently in the community. He has only recently started treatment for domestic violence and anger management, and he has done one parenting course. It is a modest effort, and he requires more treatment. The Applicant accepts full responsibility for his acts of family violence, although he has a limited understanding of the impact of those acts.
Primary Consideration 2 weighs heavily against revocation of the cancellation of the Applicant’s visa. I will now skip to Primary Consideration 5, as it is the final mandatory consideration that weighs against the Applicant.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
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 he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.[88]
[88] Paragraph 8.4(1) of the Direction.
A visa cancellation may be appropriate simply because the nature of the character concerns or offences are 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 cancel a non-citizen’s visa, if they raise serious character concerns through specified conduct that includes family violence conduct and violent crimes against women and children. These expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The Applicant committed violent crimes against a woman and a child, that were also acts of family violence. He also committed a very serious assault. He breached a domestic violence order, good behaviour bonds, a suspended sentence and parole. He did not seek treatment for his violence or drug use, and both continued. His offending history demonstrates lack of respect for the laws regulating the community that he seeks to re-enter and lack of regard for the safety of members of the Australian community. There is a very real risk of further offending of that kind.
Primary Consideration 5 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
Here, I should consider any impact of the decision on the Applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
I should also consider the strength, nature and duration of any other ties that the Applicant has to the Australian community, having regard to:
·how long the Applicant has resided in Australia, including whether he arrived as a young child, noting that:
oless weight should be given where the Applicant began offending soon after arriving in Australia; and
omore weight should be given to time the Applicant 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.[89]
[89] Paragraph 8.3(2) of the Direction.
The Applicant moved to Australia in December 2013 when he was 14 years old. He committed his first offence as an adult in March 2017. He has a solid employment history, and presumably paid tax on his income, which I treat as a contribution to the Australian community.
The Applicant’s legal representatives made many claims about the significance of the Applicant’s employment.[90] By way of example, they said that:
·his ongoing role with Toko Steel (a steel fixing business) supports local economic stability and growth by contributing to job creation and supporting related businesses in the construction sector; and
·his employment history highlights his commitment to economic stability, community enhancement, and workforce skill development in Australia.[91]
[90] Exhibit A1; Exhibit A9.
[91] Exhibit A1, page 17.
There is no evidence that supports the first contention. The second contention is patently false and ridiculous. His own evidence indicated that his reason for being employed was, obviously, to earn income.[92]
[92] Transcript, page 64, lines 40 to 45.
From 2021 to 2023, the Applicant had a three-year contract to play with the Coomera Crushers Football Club. During that time, he volunteered some of this time, coaching a children’s team and helping on the barbeque. He stopped volunteering when he stopped playing.[93] I count this as a contribution to the community and a connection to the Australian community.
[93] Transcript, page 57 line 33 to page 58, line 14.
The Applicant’s legal representatives put forward claims and commentary about his volunteer work, including that:
“The applicant's volunteer work helps sustain local sports organisations, which rely heavily on volunteers to function. This support is crucial for the ongoing availability of sports and recreational opportunities in the area. This support is crucial for the ongoing availability of sports and recreational opportunities in the area”.[94]
[94] Exhibit A1, page 18.
In the hearing the Applicant indicated that when he stopped volunteering, the club, the games and the barbeques continued without him.[95]
[95] Transcript, page 58, lines 24 to 26.
I reject all contentions of a similar nature to the examples given, including speculation, spurious and/or superfluous commentary, grandiose claims and falsehoods. I also reject material of that sort that appears in witness statements.
I allocate some weight in the Applicant’s favour under this Primary Consideration in recognition of his relationship with his children and the impact his removal would have on them, which I discuss in Primary Consideration 4.

I accept that the Applicant has a loving relationship with his mother, step-father and five siblings. While some are half siblings, for all intents and purposes, they are all simply his siblings. They are: Jasmine who is 23, Sarah who is 18, Shakaye (sister) who is 14, Hana (brother) who is 12, and Amira who is a 16 month old. I accept that he was closely involved in the lives of the older four and he provided some help to his parents by looking after the children, such as taking them to football and appointments. The oldest sister is now helping with the younger children while the Applicant is in detention.[96] There is no suggestion that this causes her, or anyone else, any sort of hardship. There is no evidence that anyone in the Applicant’s family would follow him to New Zealand. It seems unlikely that they would visit him due to the expense, although his mother indicated that she probably could visit by herself.[97]
[96] Transcript, page 47, lines 15 to 25.
[97] Transcript, page 141, lines 26 to 27.
I accept that if the Applicant is removed, his family will feel sad, and they will miss him and the things he used to do with and for them, except for the baby, whose relationship with him has been short and interrupted. His mother especially has found the Applicant’s predicament very stressful and upsetting, and I accept that she will continue to experience that if he is removed to New Zealand. I allocate weight in the Applicant’s favour on the basis of his relationship with his family and the detrimental impact his removal will have on them.
The Applicant has a large extended family in Queensland, as well as some relatives in other parts of Australia. He has regular contact with many of his relatives, and with a family who live next to his family home.[98] I accept that the Applicant has familial or social ties with these people, and they would not like to see him deported, but there is no evidence that any of them depend on him in any way or would experience hardship if he were deported. I allocate limited weight in the Applicant’s favour on account of these people.
[98] Exhibit A2, AM20, page 45.
I accept that the Applicant has friends in the community. Some provided character references that are affected by the appearance of collusion,[99] and some of these also contained the kind of disingenuous material I referred to in paragraph 8.[100] For example, a neighbour of the Applicant’s parents claimed that his daughter was “struggling with the idea of not having [the Applicant] around” and “trying to keep it together”, without any explanation of why his child would have such a fixation with the Applicant.[101]
[99] Exhibit A2, AM8, page 22; AM7, page 20; AM14, page 31.
[100] Ibid.
[101] Exhibit A2, AM14, page 31.
While the letters have little to no credibility, I acknowledge that the people who wrote them care about the Applicant enough to try to help him. I am also prepared to accept a claim in one letter that the Applicant used to assist elderly neighbours, for example by taking out their bins.[102] Another witness, Roy Smith, whose statement seemed genuine, indicated that the Applicant has positive employment relationships,[103] which I accept. His former criminal lawyer also wrote a letter of support.[104] I am satisfied that the Applicant has employment and social ties to the community.
[102] Ibid.
[103] Exhibit A2, AM10, pages 25 to 26.
[104] Exhibit A2, AM15, pages 32 to 35.
The Applicant has known Ms Parke for two years. At first, according to the Applicant they saw each other “here and there” a “couple times a week”.[105] Since March 2024, they have been in a committed relationship.[106] Ms Parke has two children, “Child V”, who is nine years old and “Child L”, who is 12 years old.
[105] Transcript, page 16, lines 10 to 15.
[106] Transcript, page 15, lines 15 to 25; page 87, lines 15 to 20.
Ms Parke separated from her previous partner, who was the father of her two children, in 2021. After that, he spent very little time with their children, and in September 2022 he passed away. According to Ms Parke, his death affected her mental health so much that she has not worked since. She and her children are in counselling, and she takes anti-depressant medication.[107]
[107] Transcript, page 89 lines 14 to 16; page 101 lines 5 to 23; page 116 lines 20 to 40.
Before March 2024, the Applicant had met Ms Parke’s children a handful of times.[108] From March 2024, the Applicant spent four or five days per week at Ms Parke’s home, and weekends with his children at his parents’ home. On weekdays he sometimes went to is family home after work to shower and spend time with his siblings, then he went to Ms Parke’s home.[109] He was taken into immigration detention in May 2024. That is, from March to mid-May 2024, the Applicant spend time at Ms Parke’s home before and after work (or later) on weekdays.
[108] Transcript, page 16, lines 17 to 20.
[109] Transcript, page 59, line 33 to page 34, line 17.
The evidence Ms Parke gave about the Applicant’s role in the lives of her children, and some of the Applicant’s evidence about that, seemed contrived. I will discuss Child L and Child V under Primary Consideration 4, but for present purposes I allocate marginal weight in the Applicant’s favour on the basis of his relationship with these children.
Ms Parke spent some of her savings paying the Applicant’s legal fees,[110] and she is in frequent contact with him. I accept that she loves him and very much wants to continue her relationship with him in Australia. I accept that, if the Applicant is removed, she will stay in Australia because her children have familial ties here.[111] I am satisfied that it will cause her emotional hardship if the Applicant is removed. She claims that it will also be hard to tell her children that the Applicant is not coming back, because that news would devastate them.[112] This belief seems to lack foundation, so any anxiety she feels about that is likely to dissipate son after delivering that news.
[110] Transcript, page 113, lines 20 to 24.
[111] Transcript, page 92, lines 4 to 9.
[112] Transcript, page 92, lines 10 to 19; page 94, lines 34 to 41.
Ms Parke said the Applicant contributed to rent and bills,[113] but that is not true: she eventually conceded that he pays for other items, which makes it easier for her to afford the rent and bills. Those items include “nice lunches, nice dinners”, items for her children and petrol.[114] The Applicant also helped around the house and spent time with her children which took some of the load off her.[115] His companionship, and the help he provided, was good for her mental health, which has declined since he has been in detention.
[113] Exhibit A2, AM2, pages 8 to 12.
[114] Transcript, page 99, line 35 to page 100, line 31.
[115] Transcript, page 110, lines 38 to 44.
In March 2024, Ms Parke renewed the lease for her home for $560 per week. This is around the same as what she receives from Centrelink, including rent assistance.[116] She is currently living beyond her means. There was some money from the sale of a house that she and her ex-partner owned, but that is nearly all gone.[117] She has had to borrow money and get extensions on bills. Her half-sister, Ms Shrubb, and her parents have lent her money and this is now causing financial strain on them.[118] She is relying on the Applicant getting his visa back so she can partly live on his income.
[116] Transcript, page 113.
[117] Transcript, page 101, lines 7 to 17; page 113, lines 17 to 24.
[118]Exhibit A2, AM5, pages 17 to 18; Transcript, page 174, lines 35 to 44.
If the Applicant does not get his visa back, Ms Parke will have to make adjustments, including moving to a cheaper home, to live within her means. She claimed that she would have to pay four weeks’ rent if she were to break her lease,[119] but provided no evidence that this would occur in her case, so I reject it. Her standard of living will be lower than she would like if the Applicant is removed, and she might continue to cause Ms Shrubb and her parents financial strain.
[119] Transcript, page 115, lines 29 to 33.
I accept that Ms Parke sees the Applicant as the solution to her problems, so his removal would negatively impact her mental health. However, they lived together as partners for a very brief period, and there is no guarantee that, if he is returned to the community, the relationship would last in the longer term. There is also a risk that the Applicant would relapse and commit further family violence, which puts her and her children at risk, despite her confidence that he would never do that. Ms Shrubb described her relationship with Ms Parke’s children as “very close”, and said she is able to take care of the children occasionally.[120] This would help Ms Parke somewhat in the Applicant’s absence.
[120] Transcript, page 171, lines 10 to 15; page 174, lines 24 to 26.
Ms Shrubb, and three of Ms Parke’s cousins all provided statements. Their evidence was exaggerated. They spoke about the Applicant as though he is much more entrenched in their lives, and the lives of Ms Parke and her children, than he actually is. What is more, having identified themselves as Indigenous Australians, they likened the separation of the Applicant from Ms Parke and her children to the Stolen Generation. For example, Ms Kaleeta Wallace wrote:
“The legacy of the Stolen Generation continues to ripple through generations, leaving a trail of destruction in its wake. The trauma inflicted upon families has far-reaching and long-lasting effects, robbing individuals of their culture, identity, and sense of belonging. I have witnessed how this dark chapter of history has torn apart families, eroded trust, and inflicted immeasurable pain on those closest to me.
The thought of Jessie and her children enduring yet another loss, reminiscent of the forced separations endured by our ancestors, fills me with a deep sense of sadness and anger. It is a huge reminder of the ongoing injustices faced by Indigenous peoples and the urgent need for healing and reconciliation in our society as whole.”[121]
[121] Exhibit A2, AM17, page 38 to 40.
This is the gist of what the other three witnesses said too, and the wording was similar. Ms Shrubb was the only one of these witnesses who gave evidence in the hearing and she was adamant that she had not discussed that topic, or any aspect of her evidence, with anyone.[122] However, there must have been some sharing of ideas, and this calls the credibility of each witness into question.
[122] Transcript, page 166, lines 28 to 47.
Ms Parke did not identify herself or her children as Indigenous Australians. The Applicant is a New Zealander who faces removal to his country of origin. He is not related to Ms Parke’s children. His involvement in their daily lives has been limited. I do not accept that his forced removal from Australia is comparable to the forced removal of Indigenous Australian children from their kin, culture and traditional land. When Ms Shrubb was asked to explain her evidence, she said:
“Well, the stolen generation and somebody being deported is, like, separating them from their family, so there is a linkage there. So you’re, like, going to basically – like, wanting to deport him, so you’re wanting to deport him and remove him from his family. You’re also going to try to separate him from his family with my sister. So there is – to me, that is quite personal, because it makes me feel like it’s like – it’s like forcibly removing him from family. So it does bring it back and it makes it, like, a bit more of a personal feeling to me, yes. It does.” [123]
[123] Transcript, page 167, lines 7 to 15.
The Respondent generously conceded that Ms Shrubb’s evidence seemed to be genuine as she held to it when challenged.[124] However, the link she drew was, on her own evidence, tenuous.
[124] Exhibit R4, page 3.
Ms Shrubb and her cousins indicated that the Applicant’s removal would also upset them because of the impact it would have on Ms Parke and her children. However, Ms Shrubb had limited understating of the Applicants offending, for example, she was unaware that he had hit his son. I have no reason to believe that she, or Ms Parke's cousins, know the Applicant beyond a superficial level. I am not satisfied that the Applicant’s removal would impact any of these people as much as they claimed.
There are some matters that are significant with respect to this Primary Consideration (which I have identified) and on the strength of those, I allocate very heavy weight against cancelling the Applicant’s visa.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Here, I must determine whether a non-revocation decision is or is not in the best interests of a child (under the age of 18 at the time) affected by the decision. Where there is more than one child affected, the best interests of each child should be given individual consideration to the extent that their interests may differ.[125] The Applicant claims that the best interests of no less than 37 children are affected by his visa cancellation. He has not provided information on the best interests of each individual child, which indicates to me that he does not have a relationship of substance with every child he nominated.
[125] Paragraph 8.3 of the Direction.
The Direction sets out a number of factors to take into consideration, which relevantly include:
·     the nature and duration of the relationship between the child and the Applicant. 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);
·     the extent to which the Applicant 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;
·     the impact of the Applicant’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the Applicant would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·     whether there are other persons who already fulfil a parental role in relation to the child;
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·     evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
·     evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.[126]
[126] Paragraph 8.4(4) of the Direction.
The Applicant’s children are young: Child A is nearly seven years old and Child B is five years old. The Applicant’s relationship with his children has been interrupted. In 2022, he and Ms K separated, so he was no longer living with them full-time. From March 2023 to January 2024, he was in prison. Upon his release, he only lived with his children on weekends, and he had phone and electronic contact with them during the week.[127] Since May 2024, he has been in detention.
[127] Transcript, page 59, lines 26 to 44; page 18, lines 36 to 39.
The Applicant physically hurt Child A and there is a risk that he will commit further acts of family violence. There were times when he was affected by methamphetamine around his children.[128] Otherwise, I accept that he has been a positive factor in their lives and would continue to be for many years to come if he were given his visa back.
[128] Transcript, page 28, lines 34 to 43.
Bank records that were provided following the hearing show that when the Applicant was briefly in the community in early 2024, he provided some child support to Ms K, although it was not nearly as much as the $300-$400 per week that he claimed he was paying.[129] He indicated that she has now applied for Child Support, so I am satisfied that if the Applicant gets his visa back, he will help to support his children financially.
[129] Exhibit A7; Transcript, page 71, lines 15 to 35.
The children are cared for by Ms K during the week. On weekends, even with the Applicant in detention, they stay at the Applicant’s family home.[130] There they have access to their paternal grandparents, their aunts and uncle, and other members of their extended family who visit.[131] There is no suggestion that this would change if the Applicant is deported.
[130] Transcript, page 144, line 27 to page 145, line 6.
[131] Transcript, page 144, lines 30 to 34.
If the Applicant is deported, he may not be in a position to pay child support and his children would not be able to spend time with him in person. I am satisfied that he would stay in contact with them by other means, but that is not the same. The Applicant claimed that the children are struggling without him, however there is no corroborating evidence of that, and it seems unlikely, given the love and care they have from his family and their daily contact with him. He also asserted that remaining in Australia was crucial for their emotional and psychological development, but was unable to explain why that is, beyond offering “Just knowing that their dad is still around, that it’s important for them to know that I’m still here for them”.[132] However, I accept that the children would miss the Applicant more than they do now, and they would feel the loss of his physical presence.
[132] Transcript, page 65, lines 1 to 5.
The Applicant has three minor siblings. He has never fulfilled a parental role for these children and, while he used to help with various things, they are not dependent on him in any way. Amira is only 16 months old and, while I accept that he has positive interactions with her, I do not accept that there is a strong bond between them or that she would suffer any detriment if he was deported.
I accept that the Applicant has a close relationship with each of his other siblings and he made a significant positive contribution to their lives by spending time with them and taking them to football training and the like. They can keep in touch with him as they do now, but it is most unlikely that they could visit. I am satisfied that his siblings miss him now, and that his removal will have a detrimental impact on them emotionally and practically.
The Applicant was involved in the lives of Ms Parke’s children for around two months before he was detained. Child V likes having a male around to do “boy things” with, for example they both like gaming and they do that together. They also play in the park or at the basketball court.[133] Child L gets along well with the Applicant and she likes the fact that he makes Ms Parke happy.[134]
[133] Transcript, page 89, lines 38 to 41.
[134] Transcript, page 90, lines 25 to 41.
When Ms Parke was asked if her children knew the Applicant’s visa was at risk, she said “Not to the full extent…They think he’s coming back. I don’t want to put that in their head…”.[135] However, this is not consistent with their evidence, in letters of support written by them, in which Child V said “I’m really sad and worried. Alovale might have to leave Australia and go back to New Zealand and I don't want him to go” and Child L said “Just thinking about him not coming home it makes me feel super sad and scared”.[136] While I am cautious about what was said in these letters as it is inconsistent with what their mother said, I place significance on what was not said. Neither child claimed to love the Applicant or to believe that he loves them, and neither spoke about him as though they regarded him as a parental figure.
[135] Transcript, page 95, lines 39 to 45.
[136] Exhibit A2, AM12; A2, AM13.

These children have Ms Parke fulfilling the parental role. She struggles with her mental health and sometimes she tells them she is sick because she finds it “really hard sometimes to, like, get up and be a happy normal parent” but they are “still cared for and fed, and clothed and everything like that”.[137] I accept that she feels more able to be an engaged parent when the Applicant is around, and the family has a better standard of living with the Applicant’s financial contribution and his company. If he is removed, they will likely have to move house and that could involve moving schools, which is normally stressful for children.
[137] Transcript, page 102, lines 1 to 6.
Ms Parke demonstrated a pre-occupation with the idea that the Applicant’s removal would be devastating for her children because of the prior loss of their father. She said they would be losing another father figure. She also claimed that her children were “sad and angry all the time” because of the Applicant’s absence.[138] However, in their letters they did not speak about him as a father figure, and their counselling sessions have recently been reduced from fortnightly to monthly because they are both doing well.[139] This undermines her evidence.
[138] Transcript, page 107, lines 28 to 36.
[139] Transcript, page 118, lines 10 to 41.
If the Applicant is removed to New Zealand, it is likely that the contact and financial assistance will stop. I am satisfied that these children are better off with the Applicant around, and that they will miss him for a while if he is deported. However, the relationship is not well established in terms of its duration, and there is no guarantee that the Applicant would remain in their lives in the long term if he were to get his visa back. While he is around, and while there is a risk of further family violence, they are potential victims. I allocate limited weight on the basis of the best interests of these children.
The are several other children, being relatives and neighbours, who the Applicant has contact with. He has frequent contact with some nieces and nephews who he takes to football or who spend time at his parents’ home. There are others who he talks to when he has phone calls or Facetime calls with their family unit, and he sees some of them occasionally. A couple are too young for him to have any meaningful relationship with. All of them have parents looking after the and none rely on the Applicant. They all have their own families and a large extended family around them.[140] I am satisfied that the children who spend time with the Applicant in-person will miss him if he is deported. Those who see him the most will likely miss him most. They could maintain contact with him if he is deported as they have done while he is in detention. As for the rest, they could continue to contact him via phone or Facetime.
[140] Transcript, pages 67 to 70.
Taking into account the best interests of the children mentioned above cumulatively, this Primary Consideration weighs heavily against cancelling the Applicant’s visa.
LEGAL CONSEQUENCES OF THE DECISION
The Applicant has not made any non-refoulement claims and none arise on the evidence.
If the cancellation of the Applicant’s visa is revoked, he will be able to lawfully return to the Australian community. If it is not, then s 198 of the Act, provides that he is liable to be removed to New Zealand as soon as reasonably practicable. It was contended that the Applicant’s personal liberty is being compromised and restricted by virtue of the fact that he is in immigration detention.[141] However, that is how the legislative scheme works and there is no evidence that there would be any likely difficulty or delay in bringing his detention to an end by deporting him. Despite his claim that he is struggling in detention as he is away from his loved ones, his mental health has actually improved, and he is able to access counselling services there. He has still been able to maintain frequent contact with his family and partner while in detention.
[141] Exhibit A1, pages 25 to 26.
Cancellation of the Applicant’s visa will preclude him from applying for another visa except for a protection visa (which would fail) or a limited term bridging visa.
I allocate limited weight against cancelling the visa under this Other Consideration.
EXTENT OF IMPEDIMENTS IF REMOVED
I must take into account the extent of any impediments that the Applicant may face if he is removed from Australia to New Zealand in establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of New Zealand, taking into account:
(a)the Applicant’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to the Applicant in New Zealand.[142]
[142] Paragraph 9.2(1) of the Direction.
The Applicant is a 25year-old man who is able-bodied and does not suffer from any physical ailments. His post-trauma stress symptoms are currently in remission, but they could return if he is released from immigration detention.
He lived in New Zealand until the age of 14. It was not contended that he would face any substantial language or cultural barriers there. He would have access to medical and economic support in New Zealand, comparable to other citizens there.
I accept that the Applicant’s and Ms Parke’s respective savings have been depleted by lawyer’s fees[143] and other expenses, and that his family are not able to provide financial support. The Australian Government has a Post Removal Support process whereby non-citizens are provided with support if they are lacking in resources or means of subsistence, or do not have sufficient funds for their onward journey or temporary accommodation. The assistance provided includes short term budget accommodation and meals, payment for internal travel, and appropriate clothing and luggage.[144]
[143] Transcript, page 109, line 37 to 43; page 113, line 20 to 24.
[144] Exhibit R3, pages 1 to 17.
The New Zealand Department of Work and Income provides supports in a manner akin to Centrelink, including specific supports provided to returnees, such as urgent income payments. There are charities in New Zealand, such as Te Pa that provide support to recently returned New Zealanders.[145] There is no reason to think that the Applicant would not receive the assistance that is available if he needed it.
[145] Unchallenged information provided by the Respondent, Exhibit R3, pages 1 to 17.
The Applicant has employment experience in manual labour and the construction industry. I am satisfied that he has good employment prospects. He indicated that if he is removed to New Zealand, he would try to find employment.[146] Given, that, and the financial assistance that would be available to the Applicant, I do not accept that he would suffer financial hardship or have nowhere to live.
[146] Transcript, page 47, line 34 to 36.
I accept that most of the Applicant’s family live in Australia, and he does not maintain relationships with any relatives, or anyone else, in New Zealand. I accept that he would suffer emotional hardship from being separated from his loved ones, and he would feel some social isolation at least in the short term. I am satisfied that the emotional hardship would be cushioned a little by his family in Australia. His mother would maintain contact with him via phone and electronic means,[147] and it is reasonable to infer that his other family members and relatives who maintain phone contact with him now would continue that contact.[148] In terms of social connections, he agreed that he would join a Mosque if he could find one.[149]
[147] Transcript, page 141, line 29 to 40.
[148] Transcript, page 102, lines 8 to 13.
[149] Transcript, page 72 lines 32 to 46.
The Applicant expressed concern that returning to New Zealand would trigger trauma symptoms.[150] Departmental movement records indicate that, since moving to Australia, he has gone overseas, for short periods, on five occasions.[151] He could only recall international travel to New Zealand, and he could only recall two trips. It was undisputed that the Applicant has problems with his memory, which could explain his failure to recall three of the trips.[152] One trip was for his paternal grandparent’s funeral. He claimed that this trip “triggered” him although he was vague about how. It appears he was still able to function normally.[153] Indeed, despite the Applicant having suffered from post trauma symptoms since childhood, this has not impaired his ability to function in everyday life. He secured employment, did well in local sport, and maintained family and intimate relationships.
[150] Transcript, page 20, line 44 to page 21, line 2.
[151] Exhibit G1, G2, page 176.
[152] Transcript, page 50, lines 28 to 46.
[153] Transcript, page 75, line 45 to page 76, line 15.
Dr Kwok thought the Applicant would be vulnerable to drug relapse in New Zealand. She said he is not currently emotionally independent enough to regulate his behaviour and emotions, especially in the absence of family support.[154] However, she said treatment is available and accessible in New Zealand,[155] and the Applicant said he would continue his treatment if returned to New Zealand.[156]
[154] Transcript, page 187, lines 24 to 36.
[155] Exhibit A3, ARM5, page 31.
[156] Transcript, page 47, lines 42 to 45.
The Applicant’s mother gave some fanciful evidence to the effect that the Applicant would be pressured by her two brothers to join the Mongrel Mob if he is removed to New Zealand. The Applicant went along with that narrative up to a point.[157] His mother stuck with her narrative when challenged, and she had an answer for everything, no matter how outlandish. However, she could not keep her story straight. For example, she said one brother was in hiding because the other brother shot someone, but later she said he was in hiding because of the mischief he gets up to. First, she had no idea where he was hiding, then he was hiding in Wellington. She had no idea who was after him, then it was gangs, then she had no idea again.[158]
[157] Transcript, page 79 line 39, to page 80, line 19.
[158] Transcript, page 124, line 29 to page 126, line 41; page 143 lines 5 to 46; page 144, lines 1 to 20.
She claimed that the Applicant would have no support in New Zealand, and would therefore have to seek support from her brothers. The Applicant does not have a relationship with these men.[159] He initially said his only option would be to live with them until he found somewhere else to go. However, he said if he had “some support and there was some money behind me” he definitely would not.[160] There is support available if he needs it. I am not satisfied that he would feel it necessary to approach his uncles for help if he were removed to New Zealand. Nor is there support for the contention that they would seek him out and try to recruit him.
[159] Transcript, page 19, lines 4 to 24.
[160] Transcript, page 80, lines 5 to 20.
The Applicant’s mother further claimed that he would be in danger from other people because of his familial connection to her brothers. The Applicant’s lawyers went even further and contended that people would assume the Applicant was a Mongrel Mob member because his uncles are, and this would bring about “social stigma and prejudice” that would “hinder his ability to find employment, secure housing and build a positive social network”.[161] There was no credible evidence that people would even know that the Applicant is related to these men or, if it did become known, that it would place him in danger or lead to him being stigmatised.
[161] Exhibit A1, pages 30 to 31.
The Applicant will face some hardship and challenges if removed to New Zealand, however I am not satisfied that these will prevent him from re-settling and maintaining basic living standards in the context of what is generally available in New Zealand.
This Other Consideration weighs moderately in favour of revocation of the mandatory cancellation.
IMPACT ON AUSTRALIAN BUSINESS INTERESTS
The Direction requires the Tribunal to consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia.[162]
[162] Paragraph 9.3(1) of the Direction.
The Applicant used to be employed by Toko Steel. He claimed that Toko Steel would be negatively impacted if he were unable to resume his employment there.[163] As this claimed impact arises from an employment link, and nothing else, according to the Direction, it would normally only attract weight where the Tribunal’s decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
[163] Exhibit A2, AM1, page 5.
Mr Tana Anthony Latu has operated Toko Steel for three years. He currently employs around 30 workers. The Applicant was initially employed as a “tie-hand” and progressed to being one of a small number of leading hands.[164] According to the Applicant, no formal qualifications are required, and he learned on the job, but he has a certificate IV from TAFE.[165]
[164] Exhibit A2, AM16, pages 35 to 37; transcript, page 148, lines 29 to 46.
[165] Transcript, page 8, lines 25 to 30; page 63, lines 4 to 10.
Toko Steel contracts to Tomkins Builders. They are two years and eight months into a three-year contract to build high rises on the Gold Coast, and he plans to start a five-year project after the current project concludes. Mr Latu claimed that, because of the Applicant’s absence when he was in prison and detention, his business failed to meet some deadlines for concrete pours, which cost him around $20,000 in penalties. He claimed he has been unable to find a suitable replacement for the Applicant and, as a result, he might not be able to accept the five-year contract, which means shrinking his business at a time when he wants to grow it.[166]
[166] Transcript, page 157, lines 37 to 43; page 160, lines 14 to 31.
Like the Applicant’s mother, Mr Latu was determined to construct a narrative that was favourable to the Applicant’s prospects of getting his visa back. He, too, had an answer for everything, but they were not plausible answers, and some were mutually contradictory. For example, he claimed he had offered men on his crew a pay rise to $100 per hour to fill the leading hand role but no-one wanted to do the job.[167] Later, he said he had been paying the Applicant around $60 per hour and he was not prepared to offer more than that in his efforts to replace him because “You’ve got to prove yourself before I offer money in my field. I can’t just offer more and get people in, and they can’t do the job”.[168] He later conceded that he employs workers casually, meaning he can easily let them go.[169]
[167] Transcript, page 154, lines 25 to 31.
[168] Transcript, page 156, lines 14 to 16.
[169] Transcript, page 160, lines 35 to 39.
When asked, “So I’m just going to ask again, if you desperately need a good leading hand, why not increase the salary, knowing that if he’s a dud, you can get rid of him?”, he replied “Because that’s a good hourly rate. That’s sort of what’s going. That’s more than sort of what’s going around at the moment. Not willing to pay more for-”[170]
[170] Transcript, page 160, lines 40 to 45.
When asked “You said you can’t persuade the good leading hands to leave where they are. Isn’t offering more money a pretty standard way of doing that?” he replied, “No. There’s people who are loyal to their bosses in my industry. And they will not just leave for a couple more dollars”.[171] He indicated that if he took on a new leading hand and he had to let them go, the builder would probably void his contract, kick him off the site and get another steel fixer to take over.[172] However, that did not happen when the Applicant left the project.
[171] Transcript, page 161, lines 1 to 8.
[172] Transcript, page 161, lines 32 to 38.
I am reluctant to accept any of Mr Latu’s evidence, however I am prepared to accept matters that were not contentious or seemed objectively plausible.
Mr Latu’s business does not have a website or any sort of professional internet presence.[173] He is not prepared to offer a monetary incentive to secure a competent leading hand. Operating in that way is not consistent with a business that desperately needs a competent leading hand.
[173] Transcript, page 152, lines 4 to 7.
Even if I accept that the business might not take on the next project, and have to lay off workers, Mr Latu described the construction industry as “pumping” and he said he guessed that laid off workers would get other employment.[174] There is no suggestion that the project would not go ahead using a different steel-fixing business. Mr Latu said his business will finish the project it is currently working on.[175]
[174] Transcript, page 161, lines 10 to 18.
[175] Transcript, page 157, lines 38 to 40.
It emerged that Mr Latu does not know the Applicant as well as he claimed. In his statement he said he was aware of the Applicant’s “past indiscretions”,[176] but in the hearing he admitted “I’ve heard a few things, but I’ve – I’m not fully aware of his record”.[177] Nor was he aware that the Applicant had previously had a drug problem or that he had been affected by drug use at work.[178] In the hearing, the Applicant admitted to having used ice three or four times per week.[179] When he was asked why he went to work on drugs, he shifted his evidence and claimed, “I was using on the weekend and then Monday come I would be still, like, affected by it”.[180] Either way, he was affected by drug use while leading a crew who were strategically placing steel to re-enforce concrete that holds up high rise buildings, and his boss did not know about it. Mr Latu said he would not allow the Applicant to work under the influence of drugs. The risk of relapse means there is a risk that the Applicant would not be able to work on Toko Steel’s projects even if he got his visa back.
[176] Exhibit A2, AM16, pages 35 to 37.
[177] Transcript, page 153, lines 7 to 8.
[178] Transcript, page 153, lines 12 to 20.
[179] Transcript, page 28, lines 11 to 15.
[180] Transcript, page 78, lines 36 to 40.
I am not satisfied that the Applicant’s removal would compromise the building project Toko Steel is currently involved in or the project it is planning to take on. At most it could result in a different company taking the latter job. Nor am I satisfied that Toko Steel delivers an important service in Australia. The Applicant’s removal may result in Mr Latu taking smaller projects or choosing to operate his business in a more professional way and make better efforts to recruit workers. Some of his workers may have to get work elsewhere. There is nothing unusual about these impacts. They do not warrant the allocation of any weight one way or the other.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction. Primary Considerations 1 and 5 each weigh very heavily in favour of cancellation, and Primary Considerations 2 weighs heavily in favour of cancellation. The Applicant’s connections to the Australian community, including children, are reflected in the very heavy weight that I allocated to Primary Consideration 3 and the heavy weight I allocated to Primary Consideration 4 against cancellation. I allocated limited weight against cancellation under Other Considerations (a), moderate weight under Other Consideration (b), and no weight under Other Consideration (c). Primary Consideration 1 is generally to be to be given greater weight than other primary considerations, and Primary considerations should generally be given greater weight than the other considerations. There is no reason to depart from those general positions in this case. The result is that Primary Considerations 1, 2 and 5 combined outweigh the countervailing mandatory considerations.

Application of the Direction therefore favours the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

183.

184.

185.    I certify that the preceding 182 (one-hundred and eighty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

.......[SGD].........
Associate
Dated: 8 August 2024

Date of hearing: 25, 26 and 29 July 2024

Counsel for the Applicant:

Solicitor for the Applicant:

Dr Jason Donnelly

Mr Ziya Zarifi
Zarifi Lawyers

Solicitor for the Respondent Mr Ingmar Duldig
Clayton Utz
ANNEXURE A: EXHIBIT REGISTER

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G

G-Documents

(G1 to G6, 251 pages)

R

Various

29 May 2024

A1

Applicant’s Statement of Facts, Issues and Contentions

(36 pages)

A

20 June 2024

20 June 2024

A2

Applicant’s Material (AM1 to AM32, 116 pages)

A

Various

20 June 2024

A3

Applicant’s Reply Material (ARM1 to ARM5, 35 pages)

A

Various

15 July 2024

A4

CBT Professional’s Invoice (1 page)

A

18 July 2024

18 July 2024

A5

Email to and Response from Men’s Behaviour Program (4 pages)

A

17 July 2024

18 July 2024

A6

Email from Lives Lived well (1 page)

A

19 July 2024

24 July 2024

A7

Applicant’s bank records and accompanying cover email (3 pages)

A

Various

30 July 2024

A8

Applicant’s further email regarding bank statements (1 page)

A

1 August 2024

1 August 2024

A9

Applicant’s closing submissions (20 pages)

A

29 July 2024

30 July 2024

R1

Respondent’s Statement of Facts, Issues and Contentions (29 pages)

R

8 July 2024

8 July 2024

R2

Respondent’s Summons Bundle (SM1, 5 pages)

R

Various

11 July 2024

R3

Procedural instruction issued to Department staff regarding post-removal support and accompanying cover email (17 pages)

R

23 June 2023

29 July 2024

R4

Respondent’s closing submissions (8 pages)

R

1 August 2024

1 August 2024

[2024] AATA 2774

8 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Remedies

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G	G-Documents (G1 to G6, 251 pages)	R	Various	29 May 2024
A1	Applicant’s Statement of Facts, Issues and Contentions (36 pages)	A	20 June 2024	20 June 2024
A2	Applicant’s Material (AM1 to AM32, 116 pages)	A	Various	20 June 2024
A3	Applicant’s Reply Material (ARM1 to ARM5, 35 pages)	A	Various	15 July 2024
A4	CBT Professional’s Invoice (1 page)	A	18 July 2024	18 July 2024
A5	Email to and Response from Men’s Behaviour Program (4 pages)	A	17 July 2024	18 July 2024
A6	Email from Lives Lived well (1 page)	A	19 July 2024	24 July 2024
A7	Applicant’s bank records and accompanying cover email (3 pages)	A	Various	30 July 2024
A8	Applicant’s further email regarding bank statements (1 page)	A	1 August 2024	1 August 2024
A9	Applicant’s closing submissions (20 pages)	A	29 July 2024	30 July 2024
R1	Respondent’s Statement of Facts, Issues and Contentions (29 pages)	R	8 July 2024	8 July 2024
R2	Respondent’s Summons Bundle (SM1, 5 pages)	R	Various	11 July 2024
R3	Procedural instruction issued to Department staff regarding post-removal support and accompanying cover email (17 pages)	R	23 June 2023	29 July 2024
R4	Respondent’s closing submissions (8 pages)	R	1 August 2024	1 August 2024