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

Lucas and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 3151 (23 September 2022)
Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2022/5556

General Division )
Re: Cornelius Lucas
Applicant

And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent
DIRECTION
TRIBUNAL: Member R Maguire
DATE OF CORRIGENDUM: 26 September 2022
PLACE: Brisbane

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision in this application as follows:

Delete the first number 6 and replace it with the number 5 in the column next to ‘File Number’.

Delete the comma and the word ‘Migrant Services’ in the column next to ‘And’ above the word ‘Respondent’.

Delete the space between ‘o’ and ‘r’ in the word ‘Category’ under the ‘Catchwords’ heading.

Delete ‘© Commonwealth of Australia 2022’ and insert ‘13’ in the footer of page 13.

............................[SGD].......................................
Member R Maguire
Division:GENERAL DIVISION
File Number: 2022/5566
Re:Mr Cornelius Lucas

APPLICANT

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

Decision
Tribunal:Member R Maguire
Date:23 September 2022
Place:Brisbane

The decision under review is affirmed.
.............................[SGD]...........................................
Member R Maguire
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category Temporary visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – breach of domestic violence orders – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Criminal Code 1899 (Qld)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member R Maguire
23 September 2022
Introduction and Background

By application made on 6 July 2022 the Applicant seeks the review of a decision of a delegate of the Minister (“the Respondent”) dated 4 July 2022 made pursuant to
s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the decision made under s 501(3A) of the Act to cancel the Applicant’s Class TY Subclass 444 Special Category Temporary visa (“the visa”).
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg 2.52), and the decision-maker determines that the Applicant passes the “character test”, or, as provided under s 501CA(4)(b), there is another reason why the mandatory cancellation should be revoked. The Minister accepted that the Applicant had made the necessary representations within the prescribed period.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under
s 501(6)(a) of the Act the person has a substantial criminal record as defined by s 501(7). Relevantly, s 501(7) states:
(7)For the purposes of the character test, a person has a substantial criminal record if:
...
(c) the person has been sentenced to a term of imprisonment of 12 months or more;...
The term “imprisonment” is defined to include any form of punitive detention in a facility or institution: s 501(12) of the Act.
The Applicant is a 25-year-old citizen of New Zealand. The Applicant was born in New Zealand in 1997 and first entered Australia on 1 October 1998. He visited Australia a number of times for relatively brief periods before moving to Australia in August 2009. He has since departed Australia on three occasions, including for a period of nine months between 20 March 2017 and 30 December 2017[1].
[1] Exhibit R1, G Documents, G15, pages 54-55.
On 6 May 2021, the Applicant was sentenced in the District Court of Queensland to 3 years’ imprisonment for one count of armed robbery in company with personal violence[2]. The offence created by s. 409 of the Criminal Code 1899 (Qld) is punishable under s. 411 with a maximum penalty of imprisonment for life.
[2] Exhibit R1, G Documents, G7, page 28.
On 13 August 2021, whilst the Applicant was in custody serving a term of imprisonment the Respondent, acted pursuant to s 501(3A) of the Act, to mandatorily cancel the Applicant’s visa because he did not pass the character test as he had a substantial criminal record as provided in s 501(7)(c) in consequence of being sentenced to 12 months or more imprisonment. Notice of this decision was given by hand to the Applicant on
[3] Exhibit R1, G Documents, G11, pages 37-43.
13 August 2021.[3]
In accordance with reg 2.52(2)(b) the Applicant was invited in accordance with
[4] Exhibit R1, G Documents, G12, pages 44-53.
s 501CA(3)(b) of the Act to make representations to the Minister about revoking the cancellation decision within 28 days after he had received the notice. The Applicant made representations to the Minister on 20 August 2021 within the period and in the manner specified.[4]
On 1 July 2022, the Respondent, acting pursuant to s 501CA(4) of the Act, decided not to revoke the visa cancellation decision made under s 501(3A) of the Act,[5] and the Applicant made the present application to this Tribunal for a review of that decision.[6] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.
[5] Exhibit R1, G Documents, G4, page 16, G5, pages 17 – 25.
[6] Exhibit R1, G Documents G1, pages 1-2.
By operation of s 500(6L) of the Act, when an application is made to the Tribunal for a review of a decision under s 501CA(4) of the Act not to revoke a decision to cancel a visa, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with 501G(1), the Tribunal is taken at the end of that period to have made a decision under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) to affirm the decision under review. At the hearing, it was agreed that for the purposes of this review, and s 500(6L)(c), the 84th day is 26 September 2022. It was therefore open to the Tribunal to make a decision prior to midnight, on 26 September 2022.
Issues
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4)The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
The Applicant has made the representations required by s 501CA(4)(a) of the Act.
As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[7]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[8]
[7] [2018] FCAFC 151.
[8] Ibid, at [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337 at [38] per North ACJ; Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548 at [31] per Collier J, with whom Logan and Murphy JJ agreed.
As provided in s 501CA(4)(b) of the Act, there are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[9] The Tribunal will address each of these grounds in turn. In these reasons, passages in bold other than headings represent emphasis added by the Tribunal.
[9] Ibid.
Does the Applicant pass the character test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. In addition, and as an alternative, s 501(7)(d) provides that a person will have a substantial criminal record if the person “has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.” Section 501(7A) provides that for the purposes of the character test, if a person has been sentenced to two or more terms of imprisonment to be served concurrently (whether in whole or in part) the whole of each term is to be counted in working out the total terms.
Evidence before the Tribunal,[10] establishes that the Applicant was sentenced to 3 years’ imprisonment in the District Court of Queensland on 6 May 2021. Moreover, the Applicant conceded that he does have a substantial criminal record and does not pass the character test[11].
[10] Exhibit R1, G-Documents, G6, page 27; G7 pages 28-32.
[11] Exhibit AE 3 page 1; Transcript 5 September 2022, page 5, lines 3-12.
It is clear that this concession was properly made, as the custodial term imposed was “a term of imprisonment of 12 months or more”, and the Applicant does not pass the character test by virtue of his “substantial criminal record” as defined in s 501(7)(c) of the Act. The Tribunal therefore finds that the Applicant does not pass the character test pursuant to
s 501(6)(a) of the Act and that the Applicant therefore cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
The remaining question therefore is found in s 501CA(4)(b)(ii) of the Act, namely whether there is another reason why the original decision should be revoked.
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
Ministerial Direction No. 90
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 90”) has application.[12] The Direction provides guidance for decision-makers on how to exercise the discretion in s 501CA(4) of the Act.
[12] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
Relevantly, the Direction states that:[13]
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.
[13] Direction No 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction/ Direction 90”), page 5, Part 2, 6 – Exercising discretion.
.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 7(1) of the Direction provides that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 7(2) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia;
(4)expectations of the Australian community.
Paragraph 9 of the Directions sets out four Other Considerations which must be taken into account. These considerations are:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(i) strength, nature and duration of ties to Australia;
(ii) impact on Australian business interests.
The Tribunal notes and emphasises the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[14]
“…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply”.
[14] [2018] FCA 594 at [23].
The Tribunal now turns to addressing these considerations.
Pre-Hearing EVIDENCE BEFORE THE TRIBUNAL
Following the mandatory cancellation of his visa, the Applicant made a Request for Revocation of the Mandatory Cancellation.[15]
[15] Exhibit R1, G documents, G12 page 44-45.
Personal Circumstances Form
The applicant did not provide a fully completed Personal Circumstances Form[16], (“PCF”) and the Tribunal does not therefore have the benefit of the usual detailed responses. The Applicant gave reasons for revocation of the mandatory cancellation as follows:
[16]    Ibid, G13, pages 46-51.
·“I have a daughter[17] here.
[17]   In these reasons, the applicant’s daughter shall be referred to as “A”.
·I’ve spent 15 years of my life in Australia.
·I’m afraid if I return back to NZ I’ll be easily influenced to gangs.
·I can’t provide the best future for my daughter back home.
·I’ve graduated High School here.
·Ever since I graduated, I’ve worked to provide for my family.
·All support networks for me and my daughter are here including her mother.
·If me and my daughter were to be sent home, I know that I would be pushed into the life of crime due to the high cost of living and lack of employment and support.
·All I ever want in life is to be the best father to my daughter and to give her the best life-style future I never had.
·This is my first time in jail. I’ve only had minor criminal history.
·The only reason I wasn’t working at the time of incarceration was due to the fact that I had to give up work to take full time care of my daughter.
·Ever since I’ve been in Australia I‘ve been contributing member of society by working and paying taxes it was only the months leading up to incarceration that I wasn’t working.
·Even though this isn’t my place of birth it is my daughter’s place of birth. Not only is it her place of birth, it is her home.
·My daughter is going to be in my care full time once I am released. Now in my nan’s custody.
·Being incarcerated has not only put me through a tough time but my daughter as well. I ‘ve missed out on precious memories with my daughter.
·I truly believe that if I was to be sent back home to NZ it will crush my daughter and will affect her.
·I believe if I am to be deported I won’t be able to be the best father for my daughter.
·I don’t have the support I need for my daughter and I back home.
·I’m truly sorry for my actions. If I could take things back I would.
·Being incarcerated has affected my daughter a lot.”[18]
[18]   Ibid, pages 47-50.

The applicant gave his place of birth as Rotorua, New Zealand, and his citizenship as
[19] Ibid, G12, pages 52-53.
New Zealand. He said he came to Australia with (Weki) Kotiro Yvonne Lucas whom he listed as his grandmother whom he referred to as his Nan. He named his mother as Joanne Lucas a New Zealand born citizen of New Zealand. He named his father Selwyn Jack Tukerangi as a New Zealand born citizen of New Zealand. He did not provide the date of birth of either of his parents. He said neither of his parents were citizens or permanent residents of Australia.[19]
The applicant said that his mother sent him to Australia at the age of ten years to live with his Nan to pursue a better life and graduate school here. He had lived in Australia for over 15 years, and his partner of five years is an Australian citizen as is his two year old daughter. Taking him away from his family would wreck everything he had worked for.[20]
[20] Ibid.
Material[21] before the Tribunal records the applicant’s attendance at online meetings conducted by SMART Recovery Australia LTD on 30 May, and 6, 11, and 18 July, and
[21] Exhibit R1, G Documents, G17, pages 79-80; AE12, AE13 and AE 18.
1 August 2022. That same material records that “Participants are recommended to attend a minimum of five SMART Recovery meetings in order to receive value from the program”.
Further material[22] before the Tribunal includes:
(a)a Statement of Attainment dated 4 November 2021 of Prepare to work in the construction industry toward a Certificate I in Construction;
(b)a Statement of Attainment dated 11 November 2021 from Coral See Training in the provision of First Aid;
(c)a certificate[23] dated 20 December 2021 from Education Online School that the applicant had completed all requirements for an Alcohol & Drug Awareness Course Online – 8 Hour;
(d)an Information Notice Security Classification[24] from Queensland Corrective Services approving the applicant’s security classification as “Low”;
(e)a Queensland Corrective Services Administrative Form – Notice of Placement Decision[25] dated 17 November 2021 evidencing the applicant’s transfer to Palen Creek Correctional Centre.
[22]   R1, G Documents, Exhibit AE1, pages 1-5.
[23]   Ibid.
[24]   Exhibit R1, G Documents, AE2, pages 1-5.
[25]   Ibid, Exhibit AE2, pages 4-5.

Letters/statements in support of the applicant
The Tribunal has had regard for the following letters of support in favour of the applicant:
(a)An undated signed letter[26] from Khyle Szucs, a Factory Manager of Australian Framing solutions who spoke positively of the applicant’s leadership skills, team work, skills development, attendance and punctuality, and general courtesy;
[26] Exhibit AE1.
(b)a letter[27] dated 22 November 2021 from Work Restart Social Enterprises Ltd signed by Alice King Job Coach stating that the applicant would be supported where possible into future employment;
[27]   Exhibit AE1
(c)an undated unsigned typed letter[28] from the applicant to the National Character Consideration Centre discussed further below;
[28]   Exhibit AE3 pages 1-4
(d)a typed undated one page statement[29] signed by Joanne Stockdale who said she had known the applicant for approximately two years and he had been to her home and family functions on many occasions and described him as courteous and trustworthy, a hard worker, and a proud and caring father, and expressed acceptance of him living in her community;
(e)a one page handwritten statement[30] dated 15 September 2021 from
Mr Richard Hohepa;
(f)a signed typed undated statement[31] from Mr Brent Watts;
(g)a one page undated handwritten statement[32] from Ms Deena Maree Ingham;
(h)a one page undated handwritten statement[33] from Mr Joel Peters;
(i)a one page handwritten statement[34] dated 16 September 2021 from the applicant’s aunt, Ms Rangimahanga Lucas;
(j)a one paragraph email[35] dated 15 July 2022 to the applicant from Martin Van Der Ryken;
(k)an undated unsigned one page statement[36] by the applicant discussed further below; and
(l)a further undated unsigned handwritten statement[37] by the applicant, headed “Letter to my victim”.
[29]   Exhibit AE4
[30]   Exhibit AE5. Mr Hohepa said he had known the applicant for five years, and described a humble generous person who loved his daughter, and describing non-specifically a job opportunity upon his release.
[31]   Exhibit AE6. Mr Watts said he had spent time with the applicant on many occasions, and found him to be friendly, supportive and trustworthy. He described him as a hard worker and a passionate father to his daughter. He had no problem recommending that the applicant remain living in Australia.
[32]   Exhibit AE7. Ms Ingham described the applicant as a hard-working and attentive father actively involved in household chores. She was aware of the applicant's past. She said that upon release he would have a huge support system including her family, who would do whatever he needed to get back on his feet and with his daughter.
[33]   Exhibit AE8. Mr Peters said that the applicant had worked for him and he had known him for five years. He described him as professional, and is having a good, helpful, and respectful attitude in all aspects of his employment. He said he was aware of the applicant's past [but did not elaborate] but would take him back on board again.
[34] Exhibit AE 9. Ms Lucas said the applicant's offending had been tough on their family including the applicant's baby daughter who was being cared for by Ms Lucas’ mother, Kotiro Yvonne Lucas. She described the applicant as a very hard worker who used to work alongside of his uncle [her partner] for a lengthy period of time. She said the applicant had recognized and owned up to his mistake. She described the applicant as a "bubbly happy helpful individual who always tries his best in any situation." She knew he was sorry for his conduct, and had learned to be much wiser in the future.
[35]   Exhibit AE11. Mr Van Der Ryken said he had known the applicant for quite some time, and that the applicant had worked for him "a couple of days here and there", and offered him a job upon his release. He said he was aware of the applicant's circumstances but did not elaborate.
[36]   Exhibit AE14.
[37]   Exhibit AE20.
A hand written statement[38] dated 27 July 2022 by the applicant’s partner; Rhiarnna Opbroek relevantly records:
“I am writing this letter in regards to my partner and my daughter’s father. I wish to express the emotional strain that is caused by Cornelius not being physically present and mine and my daughter’s life.
Since the day Cornelius was away from our family many situations have occurred that have put mental strain on my daughter and I as well as physical. We have experienced homelessness, loss of loved ones as well as other personal matters. I believe that Cornelius being deported would be another mentally straining experience for us as we would be unable to follow him with me having all of my family based in Australia, including my grandmother who I wish to be present for in her final years.
I believed Cornelius learnt a great deal during his time away and has learned from his mistake. Cornelius seems almost like a different person with how much he has matured. I ask of you to please give not only Cornelius a second chance but our family a chance to be together again.”
[38] Exhibit AE15.
The Tribunal has also had regard for a one-page hand written signed statement[39] dated for 4 August 2022 from the applicant’s grandmother Ms Katiro Lucas which relevantly states:
“I write this letter on behalf of my grandson Cornelius Lucas. During the time he has spent away I have spent a lot of time with his partner and daughter. I believe that they both need him present in their lives as well as myself. Throughout the time I have spent with them both I have witnessed them go through multiple situations that has caused them a lot of pain. I worry that if my grandson is deported on the effect it would have on everyone including myself. As well as trying to be there for my grandson’s family, I have recently experienced a heart attack and am only able to help with my great granddaughter a certain amount. If my grandson is allowed to stay in Australia he would be a great help to have him around. That way he would be able to help look after me as well as take the worry I have for his family off my shoulders.”
[39] Exhibit AE16.
The Tribunal has also had regard for an undated handwritten to paged statement[40] signed by Natasha-Leigh Opbroek, the maternal grandmother of the applicant’s daughter, which relevantly provides:
“Cornelius Lucas is the father of my grandchild. I am writing this letter in support of his application to have his deportation to New Zealand reversed.
Cornelius has shown immense regret for his actions. He took the time to think about his actions and to discover what he would change about himself in order to understand and accept is responsibilities with his action and how he can learn to be a better person. He has shown growth in maturity and is determined to be a better person, not just for himself but for his daughter A.
Whilst his actions cannot be reversed, he has done what he needed to do in order to provide better opportunities for his daughter.
I feel that these opportunities and the ability to provide a safe and loving home for his daughter can be achieved more in Australia than New Zealand. His love and support for his daughter and for my daughter, the mother of his child has never waived. My daughter recently lost her grandfather who was the only father figure in her life, Cornelius being present and available for her emotional support would also be of a benefit to her.
Please reconsider reversing the deportation decision.”
[40] Exhibit AE17
The Tribunal has also had regard for the applicant’s International Health and Medical Services Records[41] (“IHMS”) which generally indicate that he is in good physical and mental health apart from some intermittent bouts of asthma.
[41] Exhibit AE19.
In his undated unsigned typed letter[42] to the National Character Consideration Centre in response to his visa cancellation the applicant described his background, and addressed the considerations under the Direction.
[42] Exhibit AE3.
He described being born in Rotorua in 1997, and living there until he was 9 years old. He recounted that his father was incarcerated and was not around during his upbringing. His mother suffered a series of debilitating strokes when he was 6 years old, and his sisters moved to Australia, and he followed to live with his grandmother when he was 9. He completed primary and secondary schooling in Australia, and entered the workforce loading shipping containers at the Port of Brisbane.
He met his partner, Rhiarnna Opbroek, an Australian citizen in 2017, and they have a daughter A born in 2018. Rhiarnna and A live at Logan Central south of Brisbane.
The applicant acknowledged that his offence of armed robbery was of a very serious nature, and said that he took full responsibility for his poor choices. He said that he had been under a lot of work related stress, and had since childhood internalised his past traumas. He described his offending as follows:
“…
During the night of my offending I became involved in a heavy drinking session with some friends in an attempt to self-medicate. Whilst being heavily intoxicated, I made a very bad decision which ultimately ended up with me being charged with armed robbery. At the time, I was under the impression that the victim had recently robbed a family member's home, however I was so impaired that my decision making and judgement were very limited.
I realise that there is no place whatsoever within the community for this type of behaviour. I pleaded guilty to armed robbery and received a partially suspended sentence of 3 years. My partner and family have supported me throughout my criminal proceedings and sentencing.
I know I am responsible for my offences and was not thinking at that time about the consequences of my actions for the victim, my family or myself. I sincerely regret what I did, not just because of the situation I am in now but also because of the impact of my offending on my victim. I feel terrible that I had caused such trauma and have written a letter to the victim apologising in an attempt to show that my remorse for my offending behaviour was genuine. My actions and behaviour were very uncharacteristic and I am certain that it will not happen again….”
The applicant expressed a determination not to re-offend, to stay away from alcohol and the lifestyle choices that led him to offend. Regarding his time in custody, the applicant stated:
“…
I have maintained very good behaviour whilst in custody and haven't been involved in any negative incidents or received any breaches of discipline. During my time at Borallon Correctional Centre I was employed and became an integral member for Australian Framing Solutions. As team leader, my role consisted of operation machinery, using power tools and training new prisoners. I was very fortunate enough to have a position given to me that involves a lot of trust. I am currently employed within the laundry department at Palen Creek Correctional Centre. Queensland Corrective Services (QCS) gave me a Risk of Reoffending (ROR) of 17, which was based on a comprehensive case management review of my criminal history, which is minimal. This score does not indicate a risk of further violent reoffending….”
The applicant expressed the belief that it is in the best interests of A, an Australian citizen, that he remain in Australia. He had supported her financially when working. His partner and daughter had visited him a few times while he was in prison. He expressed concern that permanent separation would impact adversely on his partner, daughter, and grandmother. He went on to say:
“…
Furthermore, If I had to leave Australia, I would not see my daughter again, or at very least not for a very long time. The opportunities available for my partner and my daughter would be very limited in New Zealand My partner cannot afford to fly herself and my daughter to New Zealand on a regular basis. If I was not allowed back into Australia this would be the end of our relationship. I would be leaving my daughter without a father. Australia is their home, it is all they know, they are settled and have a lot of friends and support from my family and my partners family. To remove her from this would be devastating for her….”
The applicant expressed the view that the Australian community would give him a second chance as he had addressed the problems that led to his imprisonment, and was now not a risk to the community. In addition, he said he had lived in Australia for 15 years since coming at the age of 9, and had not been back to New Zealand with the exception of his 18^th birthday[43]. He considered Australia his home, and had made a positive contribution to the community through his employment.
[43] The applicant’s movement records (G15, pages 54-55) show that he had departed Australia on 23 December 2014 and returned on 27 January 2015, departed again on 10 January 2016 and returned on 19 February 2016, and departed again on 20 March 2017 and returned on 30 December 2017. The applicant told the Tribunal that he had never travelled anywhere in the world but New Zealand: Transcript 5 September 2022, page 51, lines 24-25. He also gave evidence that on each occasion when he returned to New Zealand he stayed with his mother. Transcript 5 September 2022 page 51 line 32.
Regarding the strength, nature and duration of his ties to Australia, the applicant said that his primary relationships are with his partner and daughter. His relationship with his partner had “had some rough times” but was now stronger than ever. He had not worked for a few months prior to his imprisonment, and his partner had to take a second job.
The applicant reiterated his remorse for his past conduct, and the impact on his victim.
In a further undated unsigned typed letter[44], the applicant again accepted responsibility for his offending, and blamed his breach of bail offences on the fact that he had been working delivering furniture.
[44] Exhibit AE14.
Since his incarceration he had realised that he had an alcohol problem, and whilst in detention had attended SMART Recovery classes, and had signed up for anger management courses and drug and alcohol counselling. He expressed an intention to undertake further rehabilitation on release. He was prepared to do “everything and anything”[45] to be a better father, and would start by getting back to work. He said:
“…My partner has said this is my last chance and if I don’t step up, this time, that is it…”[46]
[45] Ibid.
[46] Exhibit AE14.
The Tribunal has also had regard for the undated, unsigned, handwritten “Letter to my victim”[47], in which the applicant stated:
“First of all I would like to apologize for my actions. During my time in detention I have attended councelling (sic) concerning my shame and guilt for the impact I have had on my victims life, work and family. I have been educated and supported to dissect my crime and gain insight into the damage I have caused. I sincerely tell you that I am ashamed of my actions and will never place another person in this position ever again.
Respectfully, Cornelius Lucas”
[47] Exhibit AE20.
Applicant’s history of offending and other serious conduct
The Applicant’s criminal history and other serious conduct is informed by the following documents:
(a)Australian Criminal Intelligence Commission Check Results Report dated
8 December 2021;[48]
(b)Sentencing remarks of Judge Chowdhury in the District Court of Queensland at Beenleigh on 6 May 2021;[49]
(c)The Verdict and Judgment record – District Court of Queensland at Beenleigh dated 6 May 2021;[50]
(d)Sentence calculation details report from the Queensland Department of Corrective Services.[51]
[48]    R1, G Documents, G6, pages 26-27.
[49]    Ibid, G7, pages 28-32.
[50]   Ibid, G8, page 33.
[51]   Ibid, G9, pages 34-35.
A summary of the applicant’s criminal offending is found in paragraph 4 of the Respondent’s Statement of Facts Issues and Contentions (“SFIC”)[52] and is set out below for convenience:
“4. The National Criminal History Check in respect of the applicant records the following convictions (G6, 26-27)
(a) on 22 October 2014, the applicant was convicted of the offences of 'commit public nuisance', 'assault or obstruct police officer' and 'possession of a knife in a public place or a school'. The applicant was fined and no conviction was recorded.
(b) on 1 May 2020, the applicant was convicted of the offences of 'enter premises and commit indictable offence by break' and three counts of 'breach of bail condition'. No conviction was recorded and the applicant was placed on probation for 12 months.
(c) on 22 July 2020, the applicant was convicted of 'breach of bail condition'. The applicant was not further punished and no conviction was recorded.
(d) on 28 January 2021, the applicant was convicted of 'breach of bail condition'. The applicant was fined and no conviction was recorded.
(e) on 6 May 2021, the applicant was convicted of 'robbery with actual violence, armed/in company/wounded/used personal violence'. The applicant was sentenced to three years' imprisonment, to be suspended for three years after serving nine months.
(f) on 11 October 2021, the applicant was convicted of breach of bail condition. No conviction was recorded and he was not further punished.”
[52] R3, Respondent’s Statement of Facts, Issues and Contentions dated 24 August 2022, pages 1-8.
The Queensland Police Service Court Brief[53] includes the following:
“The defendant participated in an Electronically recorded Record of Interview (EROI) where he denied the offence as outlined above. The defendant stated that he was at a friend’s house all afternoon drinking Cruisers before walking home through Jacaranda Avenue, Logan Central where he was arrested by Police. The defendant stated that he located the mobile phone near a bus stop and had put it in his pocket. He further stated that he did not know what he was going to do with the mobile phone. When questioned about the blood located on his hands the defendant stated that he must have had a blood nose through the afternoon that he does not recall and wiped the blood onto his hand.”
[53] Exhibit R2, Supplementary Documents, S51, page 101.

In addition to the foregoing, the Tribunal has had regard for the sentencing remarks of His Honour Judge Chowdhury[54] in the District Court of Queensland at Beenleigh on 6 May 2021, extracts from which are set out below:
[54] Exhibit R1, G-Documents, G7, pages 29-31.
“…
You have pleaded guilty to one count of armed robbery, and company, with personal violence. You were 22 at the time of that offence. You are now 24. Your criminal history is fairly minor. Back in October 2014, you were convicted in the Beenleigh Magistrates Court of public nuisance, obstruct police and possession of a knife in a public place; no convictions recorded fined $300. On 1 May 2020 you were convicted of entering premises by breaking and committing and indictable offence. That was said to have been committed between 14 August 2015 and 17 August 2015. And then there were three breach of bail condition offences dealt with. You were also not convicted but placed on probation for 12 months. Since that appearance, there were two separate appearances, one in July 2021 and one in January 2021 for breach of bail conditions, for which, on the last occasion, you were convicted, but not for the – sorry convicted and fined $500, I should say.
In respect of the probation order, I have had regard to the Court report. Corrective Services identified that you needed support in the area of substance abuse, employment and relationships. You were sent off to attend an organization to give you assistance and you seem to have done that reasonably well. In summary they consider that you responded positively to probation and you had addressed your needs and you were considered suitable for further community-based orders. The circumstances of the offence are really quite bad…
[The complainant] was going for a walk on the afternoon of 14 July 2019. At about 8 pm he was waiting at traffic lights… when he heard a noise. He took his headphones off and saw you and your uncle about one metre behind him. The complainant asked if he could help you and with you needed to know the time. Neither you nor your uncle answered. Your uncle then pulled out a machete from behind his back. It was about 1 metre long. The complainant walked backwards and asked what was going on. Your uncle swung the machete at him. The complainant turned and ran… but tripped and fell to the ground. He looked back and saw you running towards him and you approached him and punched him in the right cheek. It is said that punch had no effect on him.
Your uncle then came and swung the machete and struck the complainant on top of the head. The complainant fell backwards, and there was then a scuffle on the ground between all three of you. The complainant managed to get hold of the machete that had fallen to the ground and he swung it in an attempt to get some space around him. Your uncle then put his arms around the complainant’s chest and pulled him forward, causing his chest to rest on the ground. You held the complainant’s right arm which had the machete in it, to prevent him from swinging it a second time. While you were holding his arm, you unzipped his right rear pants pocket and removed the complainant’s Apple iPhone and a wallet which contained cards and approximately $40 in cash.…
Police continued to search and at 8:55 they then saw your uncle and you in close proximity to each other. As the police approached you, you and your uncle split off. Police officers followed you and stopped you. They conducted a search and they found the complainant’s iPhone in your pocket.
You were arrested and transported back to the watch house. You took part in an interview. You told the police a couple of stories – first, that the phone belonged to your friend, but then later changed that you found it on the side of the road – and you denied that you had been with your uncle that night, saying that you last saw your uncle a number of days prior. You are then charged and remanded in custody.…
I have spent some time going through the details of the facts to highlight the seriousness of it. The complainant was simply going about his lawful business, going for a walk and going to shops and going to visit a friend, and you and your uncle simply followed him. And then when the complainant asked if you needed help, he was then disgracefully threatened with the machete. You punched him. And then significantly, he was struck on the head with the machete by your uncle. I have seen the photographs in Exhibit 4. It is a significant wound and you are lucky and the complainant is lucky he did not suffer a more serious injury. A machete is a particularly dangerous weapon.
Armed robbery in company with personal violence happens a lot in this district. It occurs in a variety of circumstances, as you heard me discuss. There might be some planning by some criminals who go knock over a bottle shop or a 7-Eleven store or service station, or as happens quite frequently here, a group of criminals are just wandering around looking for a target, and when they come across a target, then attack that person, simply to steal – what was it: an iPhone and about $40 cash and some cards? It is not really worth it, but when you look at it in hindsight, particularly when you’re going to go to prison. I am told by Mr. Feely that you were extremely intoxicated at the time. Again, that is not a surprising feature in a lot of these cases. It is an explanation, but it is certainly not an excuse.…
Mr. Feely submitted it was spontaneous offending, that the uncle was the lead offender. I accept that. Quite clearly he lead you astray and was a shocking example to you, and of course he was the one armed with the machete and used it.
You were born in Rotorua. You grow up with your family. I am told it was a good upbringing. You enjoyed good outdoor pursuits like hunting and fishing. In 2005 you came to Australia when you’re eight years of age. You live with your grandmother. I am told your sister so here – sorry, your sisters are here. You did great 12 at Kingston State High School. You have got a good work history. You have worked at the port. You have worked as a roofer. You have worked in installing insulation. You have worked for department stores, moving furniture and other goods around. You are in a current relationship of some five-year standing. You have a two year old daughter and depending today, you’ve actually been caring for her. Your plan if you can stay in Australia, is to continue work. I am told you have stable accommodation.
Mr. Feely has strongly urged upon me that I should really not send you to prison today, that I should wholly suspend a sentence of three years. In my view that would simply be too lenient. It would not be meeting the necessary factors of general deterrence and personal deterrence; although I accept that given that you do not really have any history of violence, that is probably not as important as general deterrence. And also, simply that the community expects you to be punished for this serious offence. The community is sick and tired of this type of violent robbery occurring in their districts, so they look to me to try and put a stop to it by imposing heavy penalties. I do have to give you all those matters in your favour – I have to give you credit for all those matters in your favour and I will do so.
Having regard to all of the matters, I would’ve otherwise sentenced you to three years in prison, suspended after 12 months, but to give you some hope for the future and to give some credit for the fact that you have done well on parole, you have got a good work history and you’re still a young man, I will suspend the sentence after you have served nine months…”
The Tribunal notes from police interview notes that the uncle also made second unsuccessful attempt at striking the complainant with the machete.[55]
[55] Exhibit R2, S43, page 70, S60, notebook page 150 and S44, page 74 at para [13].
The Tribunal notes that a QCS Risk of Re-Offending Assessment (“QCS”) dated
12 May 2021 gave the Applicant a total score of 17 with the range of scores 1 to 22, with 22 being the highest risk of reoffending.[56] A further QCS report dated 17 November 2021[57] recorded:
“You have been assessed as having a Risk of Reoffending Prison Version (RoR-PV) score of 17 which indicates you fall into the category of offenders who pose a high risk of further general reoffending. I note this score does not indicate your risk of further violent offending.”
[56] Ibid, S69, page 171.
[57] Exhibit AE2, page 2.
The same report also recorded[58] “…there is a clear escalation in your offending…” and that the applicant was currently working as an Industry Team Leader.
[58] Ibid.
EVIDENCE AT HEARING
The hearing took place via Microsoft Teams on Monday 5, and Tuesday 6 September 2022.
The Applicant was self-represented, and the Respondent was represented by Ms Abby Tinlin of Minter Ellison Lawyers. It was agreed that the 84^th day for the making of a decision was Monday, 26^th September 2022.
The Tribunal received oral evidence from the Applicant, who was in the migration zone on shore in Australia. The Tribunal also received written and oral evidence from the witnesses as below. The complete suite of written material forming the exhibit record is further particularised in the Exhibit Register Annexure attached hereto and marked “A”.
The Applicant conceded the accuracy of the history alleged against him in the Respondent’s Statement of Facts Issues and Contentions (“SFIC”) and the fact that he did not pass the character test.[59] In answer to questions from the Tribunal, the applicant confirmed that all submissions made to the Court which sentenced him were true and were made on his instructions. He also confirmed that all statements made to the department during the request for revocation process and to the Tribunal were true and were made by authorized by him[60].
[59] Transcript of 5 September 2022, page 5, lines 3- 22.
[60] Transcript of 5 September 2022, page 7, lines 20-33.
In opening remarks, the applicant stated[61]:
“…
I understand my actions have affected not only my victim but his family and my family also. I realise the seriousness of my actions have traumatised my victim and his family forever. However, I have had a lot of time to reflect and dissect what happened that night and I’m very remorseful. I assure you that I will never put another person in that position every again. I cannot change my past. But, I can rise above it. My parents may have given my DNA, but Jesus will give me a new beginning...”
[61] Transcript of 5 September 2022, page 10, lines 14-21.
In her opening remarks, Ms Tinlin made submissions in line with the Respondent’s SFIC, and emphasized that in terms of the overall position the primary considerations of the need to protect the Australian community and the expectations of the Australian community outweighed any considerations favouring revocation whether individually or collectively considered, and that the correct and preferable decision was to affirm the decision under review[62].
[62] Transcript of 5 September 2022, page 10, lines 37-42.
She further submitted[63] that the robbery offence must be viewed very seriously as it involved violence, and the seriousness of the offence was reflected in the 3 year sentence. The applicant had multiple other court appearances, and there had been a clear escalation in seriousness of his offending, and repetition of his conduct had the potential to cause psychological, financial and physical harm to individuals and members of the community.
[63] Transcript of 5 September 2022, page 10, line 45 and page 11, line 14.
Ms Tinlin acknowledged[64] that the applicant had expressed remorse and engaged in some rehabilitation. She submitted that the applicant’s offending largely occurred in the context of intoxication and demonstrated a pattern of poor conduct and circumstances of intoxication. His rehabilitation regarding his alcohol issues was incomplete.
[64] Transcript of 5 September 2022 page, 11 lines, 15-24.
Ms Tinlin referred to the applicant’s history of breaching bail conditions, his obstruction of a police officer and his lies to police. She submitted that these episodes demonstrated a blasé cavalier approach towards respect for the law[65].
[65] Transcript of 5 September 2022, page 11, lines 31-39.
Ms Tinlin also referred to the Queensland Corrective Services risk of re-offending assessment score of 17 points which put the applicant in the high risk category for general reoffending[66]. She submitted that heavy weight should be given to primary consideration number one.
[66] Transcript of 5 September 2022 page, 11 line 43 – page 12, line 3.
Regarding the best interests of minor children, Ms Tinlin observed that the applicant had identified his three-year-old daughter as a child who would be affected by the decision. The minister acknowledged that this consideration weighs in the applicant’s favour, but submitted that this consideration should not attract overwhelming weight as there had been a long period of absence or limited meaningful contact with the child and they would be able to maintain contact via video calls and it would be open to the applicant’s daughter and partner to visit him in New Zealand[67]. Ms Tinlin also added that the applicant’s partner filled the parental role with regard to that child, and the applicant had not played a primary carer role for a significant portion of her life.
[67] Transcript of 5 September 2022, page 12, lines 5-25.
Ms Tinlin submitted that the expectations of the Australian community in view of the applicant’s record weighed strongly in favour of non-revocation.
Regarding other considerations, Ms Tinlin submitted that only limited weight should be given to the impediments which would be faced by the applicant if he is removed from Australia. This was because he had spent a large portion of his childhood in New Zealand, had family members there, and had been back on several occasions, and there would be no substantial language or cultural barriers. Moreover, the applicant is a young man and the evidence suggested that he is of good health and as a New Zealand citizen would have the same access to social, medical and economic support that is generally available to other citizens of New Zealand[68].
[68] Transcript of 5 September 2022, page 12, line 43 – page 13, line 18.
Ms Tinlin accepted on behalf of the minister that the applicant has immediate family and Australia in particular his daughter, but also including his sisters, aunties and uncles and his grandmother all of whom would be impacted by a decision for non-revocation, and this consideration weighed in the applicant’s favour, but not so as to outweigh the protection of the Australian community and expectations of the Australian community[69].
[69] Transcript of 5 September 2022, page 13, lines 20-33.
Cross-examination of the Applicant
In cross-examination[70], the applicant told Ms Tinlin that he grew up in New Zealand and attended primary school there. He had a few distant family members, cousins etc. His mother and father are still in New Zealand and one of his youngest sisters live with his parents.
[70] Beginning at Transcript of 5 September 2022, page 14.
The applicant gave evidence that he settled in Australia at the age of 12 in 2009, but made several trips to Australia before that time to stay with his grandmother. He finished high school and went to work at the Port of Brisbane for three months. He then worked doing deliveries on and off for Super A Mart. He also did other jobs, before returning to Super Amart for four years. He moved from his grandmother’s premises with his partner around the time their daughter was born in 2018.
The applicant said that he met his partner when they were in school. He said they love each other and hopefully one day they can get married and have a bigger family. He said that like every relationship, nothing was perfect and they had their ups and downs. When asked about the rough times they had been through he said he was referring to financial ups and downs, stress, and a new born baby. His imprisonment had been rough on his partner emotionally physically and mentally.
The applicant was referred to exhibit AE14 headed Nature of Justice Letter where he had stated his partner had told him this was his last chance to do the right thing. He gave evidence that he has told his partner he is happy to go into rehab.
The applicant was also referred to Exhibit R2, page 95, the court brief for an offence of evasion of a taxi fare in October 2014. The applicant said his memory of the evening was not that good as he was heavily intoxicated, but he remembered being arrested that night. He was referred to the obscene and abusive language he had used to police[71]. He did not recall this, and could not explain why he had a knife “for protection”. He did not recall having a knife prior to being intoxicated. He denied carrying a knife on other occasions and could not remember where he got it. He was pretty sure he was fined $300 for this offence. He expressed disgust with his conduct, and acknowledged his drinking problem and said he did not want to take alcohol any more.
[71] Transcript of 5 September 2022, page 21, line 35 – page 22, line 1.
The applicant was also referred to exhibit R2, page 105, the court brief for an offence of Enter premises and commit indictable offence by break in August 2015. The indictable offence referred to was stealing a computer and clothing and sunglasses which were on the premises. He recalled that night and said he was again heavily intoxicated on this occasion. He admitted breaking the window but denied stealing anything[72], despite the conviction. He was also convicted for breaches of bail. He agreed that he denied the incident to police when first questioned, and blamed his intoxication for his offending. The applicant was referred to exhibit R2, Page 164, which recorded that he had been kicked out of a nightclub in Fortitude Valley, was angry and took his aggression out on the victim’s vehicle. He agreed that there was a “small” pattern of aggression when drinking, and he made poor decisions[73]. He stressed he would not be turning back to alcohol.
[72] Transcript of 5 September 2022, page 23, line 23-26.
[73] Transcript of 5 September 2022, page 24, lines 1-25.
When questioned regarding his numerous breaches of bail, the applicant explained his failure to report by reason of his work commitments, and on one occasion being sick. He could not explain his failure to contact and advise police that he could not report.
He explained that a further breach of bail condition saying that he had been busy with his family organizing Christmas lunch. He agreed that there were a number of breaches of bail condition, and there was a pattern of such breaches, but it was because of work[74].
[74] Transcript of 5 September 2022, page 26, lines 25-27.
The applicant was referred to the Transcript of Proceedings in the District Court of Queensland, Exhibit R1, G7 beginning at page 29, line 25, and agreed with the details as outlined by the sentencing judge[75].
[75] Transcript of 5 September 2022, page 26, line 45.
The applicant said[76] he had been heavily intoxicated and did not recall most of the night, but recalled his arrest. He was “not quite sure” who he had been drinking with after work at Amart, but he did not think he had been drinking with people from Amart. He could not remember who he was drinking with or when he started drinking. He did not recall meeting up with his uncle that day or how he became involved. He did not drink with his uncle regularly and did not see him regularly at the time as his uncle was kicked out of his grandmother’s house when he was living with her. He denied being close to his uncle even though they had been living together. They clashed a lot. He was very vague about his contact with his uncle.
[76] Transcript of 5 September 2022, page 27, line 1 – page 28, line 10.

The applicant was questioned in relation to his statements contained in exhibit AE3, and the following exchange occurred[77]:
[77] Transcript of 5 September 2022 page 29 lines 10- page 30 line 29.
“…
It says in that AE3 document that - so on that night you’d said that you were involved in that heavy drinking session with friends then you said, “Whilst being heavily intoxicated I made a very bad decision which ultimately ended up with me getting charged with armed robbery.” But then you say here, “At the time I was under the impression that the victim had recently robbed a family member’s home.” Can you explain that?---(Indistinct). To the best of my knowledge I will - I’ll try. Like I said, I don’t recall most of the night. I was intoxicated, yeah I - honestly, I have trouble trying to remember what happened that night because I’d like to remember. It’s hard - it’s hard for me to try and think about.
Sure. It seems that you had remembered at the time of drafting this statement though with that sentence, saying that you were under the impression that the victim had recently robbed a family member’s home. Are you saying now that you can’t remember what you meant by that - meant (indistinct)?‑‑‑ I’m just having trouble trying to remember everything of that and what happened that night due to being intoxicated.
Sure, but it seems that you have remembered that, given you’ve written that down? So you can’t - you can’t enlighten the tribunal any more about what you meant by that sentence?---No, I’m not lying - I’m not lying, I’m just trying to - trying to sit here and remember like what happened - what led to that - to that whole incident of that night. Yes.
That’s all right, I can give you a moment to have a think about it, that’s fine?‑‑‑Can you read that thing please?
Yes, of course. So it says, “At the time I was under the impression that the victim had recently robbed a family member’s home”?---I’m having a blank moment. What else did I say after that?
“However, I was so impaired that my decision-making and judgment and were very limited”?---I’m not quite sure, but I admit - I’ll admit to it.
Well, we want you to give your truthful answers based on your knowledge, Mr Lucas, so if you can’t recall, it’s just questionable, given that you have indicated that in a statement that you’ve said is written by you, but if you can’t recall, I can move on. So, given you’ve said that you can’t recall that night, I imagine you can’t recall sort of being with your uncle at the time of the offending?---I mean I don’t recall most of that night like.
Okay so - - -?---Yeah, so I - sorry.
No, you go on?---Hey? Did you want me to carry on?
Yes?---I didn’t - as I said - I was about to say - I don’t even remember how I come to meet up with him or what-not.
So you can’t remember sort of what you were doing with your uncle or whether you were intending to rob someone when you were out with him?‑‑‑No.
Or when that intention formulated?---No, no.
Now, I just want to quickly check the sentencing remarks. One moment. So the sentencing judge in your matter had mentioned in the sentencing remarks that - he says, “Quite clearly he” - being your uncle - “led you astray.” Would you say you were an impressionable person?---What do you mean by that?
So he said your uncle has led you astray. Would you say that you’re easily led astray?---No. Not so - not while I’m sober.
But possibly while you’re intoxicated?---Yes, most likely - yes, most likely.
….”
The applicant blamed fatherhood, and rude customers, working and paying bills for his stress at the time[78]. He discussed the SMART Recovery online meetings to overcome addictions. He had also done drug and alcohol counselling with a nurse who only worked four days per month. He had only one half hour class with her two weeks ago, talking about and admitting his addiction. He also did about 6 or 7 anger management counselling classes with a mental health nurse.
[78] Transcript of 5 September 2022, page 30, line 46 – page 31, line 11.
The applicant agreed that alcohol had contributed towards his offending[79], but could not recall when his alcohol problems started. He began drinking at about 17 or 18 every weekend. He said he got his drinking problem from his father who was a bad alcoholic.
[79] Transcript of 5 September 2022, page 34, lines 25-46.
The applicant gave evidence of his efforts with Ted Noffs and AA courses earlier this year. He agreed that he was in early days as far as alcohol rehabilitation was concerned. He agreed that his alcohol issue has not yet been fully addressed.
The applicant said that he did not have a great childhood[80]. His father was a bad alcoholic and was in and out of jail and was not there to teach him right from wrong. His father used to badly beat his mother, and him, and these factors affected him a lot, and built up anger in him. His mother had suffered three major strokes and was paralysed[81]. He has not sought specific rehabilitation for this, and believed it had impacted his alcohol use and was a risk factor going forward[82].
[80] Transcript of 5 September 2022, page 40, lines 11-25. The sentencing judge remarked at Exhibit R1, G7, page 31, lines 16-17: “I am told you had a good upbringing. You enjoyed good outdoor pursuits like hunting and fishing”.
[81] Transcript of 5 September 2022, page 40 lines 40-41.
[82] Transcript of 5 September 2022, page 40, line 45- page 41, line 2.
Both his partner and daughter were in his life at the time of his offence[83]. Now he is aware of the consequences of re-offending, and he does not want them to go through this again, and does not want to re-offend. He agreed that there would be an expectation that he support his partner, daughter, grandmother and two sisters if released into the community[84].
[83] Transcript of 5 September 2022, page 40, lines 30-43.
[84] Transcript of 5 September 2022, page, 41 lines 20-24.
The applicant said his daughter is his world[85], and she loves and misses him a lot. Separation from him will destroy her. His family will be broken if he is sent back to New Zealand. He has missed two of her birthdays and he is about to miss her second birthday.
[85] Transcript of 5 September 2022, page 45 line 17-31.
He left his job at Harvey Norman five months before he was sentenced, and was a primary carer for that period[86]. Otherwise his partner had been the primary carer. His daughter A was two and a half when he was imprisoned. They have been separated for about a year and a half. He spoke to her three times a week whilst in jail. Now he contacts her nearly every day by video calls. His partner, grandmother and sisters all contribute to her care, financially and emotionally. He had been the sole provider for the family working six days a week[87].
[86] Transcript of 5 September 2022, page 45 lines 33-41.
[87] Transcript of 5 September 2022, page 46 lines 12-page 47 line 35.
He would provide financial support for his daughter if he is returned to New Zealand. His family is gang affiliated and he would find it difficult to gain employment, as he tried when he was back there in 2017. The only work he could get was lowly paid work in an orchard. He was paying his mother rent. He has a good employment history in Australia, and that would help in New Zealand. His previous employers would give him references to take to New Zealand[88].
[88] Transcript of 5 September 2022, page 47 line 37- page 48 line 31.
Asked why he feared turning to crime, he said New Zealand is run by gangs. He said “Especially my family background is gang affiliated. Like it runs in our blood … ”[89] His partner would not move to New Zealand even after her grandmother passes away as her family is here. They don’t have the money to fly the daughter back and forth.
[89] Transcript of 5 September 2022, page 48 lines 39-40. See also page 52 lines 34-35.
The applicant said that he has distant family in New Zealand, his mother’s sister and cousins. They are spread out in New Zealand. He has not maintained contact with his friends there. He was there for nine months in 2017. He described this trip as a cultural thing to find his roots, and spend time with his mother, and touch base with his culture. He stayed with his mother while he was there. He has never travelled anywhere else in the world other than New Zealand. He stayed with his mother on each occasion he went to New Zealand, and caught up with family there. If returned he will move back in with his mother, sister and father. The only support they can give him is love. He thinks his sister is 16 years old and still at school.
The applicant said he is grieving for his partner’s grandfather, and missing out on his daughter and partner. He has intermittent asthma, but has no other physical or mental illness, and described himself as “pretty fit.” His sisters could provide support to his grandmother if he is deported. His uncle works full time, and is able to assist his grandmother also.
The applicant said his family and friends in Australia would not visit him in New Zealand. They have their own lives and problems. His sisters have been back occasionally. His grandmother is an Australian citizen as are his two sisters aged 15 and 18 living with her, and his uncle and his grandmother’s brother.
He plans to get back to work full time. He has a few jobs waiting. He wants to get his life back on track surrounded by positive people, move to his own place, and perhaps get into real estate. He will take whatever job comes along first.
On release he will live with his grandmother, daughter and partner, and Mr Kepa. He would have family support, and work, everything he needs to make a new start. He is not concerned about living with his uncle. He expects to be able to move out within three months. He has no connection with his uncle. He acknowledged that he had offended with his uncle notwithstanding the poor relationship.
The applicant told the Tribunal that his grandmother, sisters and uncle Materoa are all Australian citizens[90].
[90] Transcript of 5 September 2022, page 55 lines 25-33.
The Tribunal questioned the applicant in relation to his letter to the Department in which he asserted that he had been under the impression that his assault had robbed a family member, and the following exchange occurred[91]:
[91] Transcript of 5 September 2022, page 55 line 39 – page 58 line 25.
“…
You mentioned in your letter to the Department that you’d been under the impression that the victim, your assault victim, had robbed a family member. How did you gain that impression?‑‑‑Look, your Honour, shit - sorry, excuse my language. I don’t know how that come over me. I was intoxicated. I honestly do not know. Maybe my uncle had spoken - said something while I was intoxicated or something. I’m not quite sure, your Honour. I wish I could remember the whole night so I can tell you the truth and get past this and, yes, you know - - -
You wrote a letter to the Department saying you were under the impression that the victim had robbed a family member. Who was the family member?‑‑‑I have no idea. Like, that’s what I mean, I think my uncle may have told me when I was drunk, I’m not quite sure. I don’t - yes, I do not know. Because, I mean, alcohol has really destroyed my life.
What was the - what had the victim supposedly robbed? What was the item of robbery?‑‑‑I have no idea, your Honour, and that’s me being honest.
Were you and your uncle setting out for some sort of revenge against him that night, were you?‑‑‑No.
How did your uncle come to have the possession of a machete?‑‑‑That’s what I mean, like, I don’t know what happened. I was, yes, I was drunk. I don’t know what - all I remember is he’s been locked up in gaol and then I get locked up and I haven’t had contact with him since.
When did you first realise your uncle had a machete?‑‑‑Sorry?
When did you first realise your uncle had a machete on him?‑‑‑Well, when I got - when I was got taken to Woodridge police station, I got questioned and that and shown the photos of what happened, then I realised then.
So you claim to have been unaware of the fact that your uncle was carrying a machete when you were walking down the street beside him?‑‑‑That is correct, your Honour. I may have had a blank moment, being intoxicated. It does happen, you go blank, you know, you don’t remember much.
You’ve written to the Department saying that you believed your victim had robbed a family member. That suggests to me that this was a targeted assault. What do you say to that?‑‑‑Yes, I understand what you’re saying, your Honour.
It was - - -?‑‑‑Sorry?
So it was a targeted assault, was it?‑‑‑No, that’s not what I’m saying. What I’m saying is I understand what you’re saying but, like I said, I was highly intoxicated. I really don’t remember. I must have blanked out. I don’t know what happened until I got to the watch house and I was questioned and shown photos and what-not.
Did you and your uncle regularly go for walks of an evening carrying a machete?‑‑‑No, no, your Honour, no.
Surely you must have noticed something unusual?‑‑‑Like I said, your Honour, I was intoxicated. I was - I had a blank moment.
I’m left - - -?‑‑‑I want to tell the truth.
I’m left to choose between two conclusions. Either it was a targeted assault on a person whom you believed had committed a robbery against a member of your family, as you told the Department, or alternatively it was a random attack. What was it?‑‑‑Well, what I can, you know, by the sounds of it, it would have been maybe a random attack. Like I said, I was highly intoxicated, it wasn’t planned. I had a blank moment, your Honour, and unfortunate events had happened that night and I’m very remorseful.
Well, if it wasn’t - - -?‑‑‑I’m very sorry.
If it wasn’t planned, why did your uncle have a machete on him?‑‑‑I can’t speak on his behalf, your Honour. I can only speak on my behalf.
You told me earlier that what you told the Department was true. Now you tell me you can’t remember enough to say whether it was true or not?‑‑‑About carrying a machete?
Well, you told me earlier that what you said to the Department was all true and that included the suggestion that you had been under the impression that the victim had robbed the family member. Now, that suggests to me you knew who the victim was and that it was a planned act of revenge?‑‑‑I did not know who the victim was, your Honour. It was not planned. I was under the influence of alcohol very heavily and I had a blank moment.
Should I conclude it was a planned attack or a random assault?‑‑‑Well, your Honour, I can’t speak on your behalf. I can’t tell you what to do. You’re the judge, you judge us, us criminals, as you may see it.
What do you think it was? Was it a planned attack or was it a random assault?‑‑‑A random assault.
Yes, very well. Thank you very much. Anything arising out of that, Ms Tinlin?
MS TINLIN: I just wanted to clarify, Mr Lucas, one of the questions was whether you claimed you were - your claim was that you were unaware that your uncle was carrying a machete and you said yes?‑‑‑I was unaware.
But your evidence is also that you can’t remember, so I just want to clarify, is it that at the moment you can’t remember whether he was carrying a machete or whether you were unaware he was carrying a machete?‑‑‑Isn’t that, like, the same thing? Doesn’t that mean the same thing?
Not necessarily?‑‑‑I was unaware.
If you can’t remember the events how do you know if you were unaware at the time of the event if he was carrying it or not?‑‑‑Well, I didn’t know he was carrying it but when I got taken to the watch house and they showed me what happened that’s when I was, like, I was baffled. I was like, “What the hell?”
But you’re saying you can’t remember that night, that’s correct?‑‑‑Yes, correct.
So how can you say that you were unaware that he was carrying a machete when you, in fact, can’t remember the event?‑‑‑Well, like I said, I had a blank moment. It does happen whilst being very highly intoxicated with alcohol, yes.
So would it be more correct to say that you can’t remember whether your uncle was carrying a machete or not?‑‑‑Yes, I guess so.
Thank you. Nothing further, Member…”
EVIDENCE OF MR RICHARD HOHEPA
The Tribunal heard evidence under affirmation[92] by telephone from Mr Richard Hohepa who verified his statement Exhibit AE5. In cross-examination, the witness said he had known the applicant for about five years and spoke positively of his commitment to his work and his family. He did not know much about the applicant’s criminal history, but was prepared to offer him employment. He said the applicant’s daughter had been struggling since his incarceration.
[92] Transcript of 5 September 2022, page 59 line 40-page 63 line 33.
EVIDENCE OF Ms DEENA INGHAM
The Tribunal heard evidence under affirmation[93] by telephone from Ms Deena Ingham who verified her statement Exhibit AE7. In cross-examination, the witness said she had known the applicant for approximately three years, and described him as “an un-biological brother” to whom she was quite close. She said that she saw him almost every day prior to his incarceration, and socialized regularly with him. She said she was not aware of the detail of his offending other than it was a serious charge, and he would be spending time in jail. She had stayed in touch with him via email and phone calls, and visited him twice whilst he was in prison. Ms Ingham said that the applicant had a huge support system available to him should he be released back into the community. There were people to assist him gain employment, and get to job interviews, and short term accommodation.
[93] Transcript of 5 September 2022, page 65 line 17 – page 68 line 25.
EVIDENCE OF BRETT WATTS
The Tribunal heard evidence under affirmation[94] by telephone from Mr Brett Watts who verified his statement Exhibit AE6. Under cross examination, Mr Watts said he had known the applicant since about 2020, and had gotten to know him through drinking beer after work, and seeing him regularly at least three or four days per week. He had very little knowledge of the applicant’s offending, and described him as an awesome person. He had visited him in prison, and spoken to him by phone while he has been in immigration detention. He said he would definitely visit him in New Zealand, but hoped he could remain in Australia. He was prepared to support him to re-establish himself in the community, and get back to work.
[94] Transcript of 5 September 2022, page 69 line 8 – page 72 line 9.
EVIDENCE OF RANGIMAHANA LUCAS
The Tribunal heard evidence under affirmation[95] by telephone from Ms Rangimahana Lucas, the applicant’s aunt, who verified her statement Exhibit AE9. In cross examination, Ms Lucas described the help that she and her family have provided to the applicant’s daughter. Ms Lucas also said that her mother was very sick, and was attending a lot of hospitals and doctor’s appointments. Ms Lucas said the applicant’s family is in Australia, and they are not able to travel to New Zealand because his partner had recently lost her grandfather. Ms Lucas had no knowledge of any of the applicant’s offending, and described him as a good boy. She said she was not sure if the applicant’s co-accused was her brother, and said she did not want to say anything out of line. She appeared to rule out visiting the applicant in New Zealand.
EVIDENCE OF MS RHIARNNA OPBROEK
The Tribunal heard evidence under affirmation[96] by telephone from Ms Rhiarnna Opbroek, the applicant’s partner, who verified her statement Exhibit AE15. In cross-examination, the witness said she had been in a relationship with the applicant for going on seven years, and had lived together for the majority of that time, but had been apart around the time of his offending. She said she pretty much knew nothing about his offending. She had not noticed any excessive drinking on his part. She was the primary carer for their daughter, but the applicant had been in that role for about five months before he went to prison. Her family all live close to where she presently resides. She would visit the applicant in New Zealand, but it would be difficult for her. She expressed concern about the costs of travel and the risk of Covid, and not being able to return to work. She would not consider moving to New Zealand, as she does not want to leave her grandmother or mother. She believed he would work harder and better if released into the community.
[95] Transcript of 5 September 2022, page 72 line 29 – page 77 line 10.
[96] Transcript of 5 September 2022, page 77 line 34 – page 82 line 21.
Day Two of the hearing

This applicant has one biological child, the daughter A referred to earlier. He cared for her full time for a period of about five months prior to his incarceration at which time she was about two and a half years old. In consequence of his incarceration and detention he has now been separated from her for a period of some eighteen months, which is a long time in the life of a child of such tender years, and during that time has obviously not been able to play a role as a primary care giver.
The Tribunal does not have the benefit of expert medical evidence of the impact of her father’s deportation on A. However experience on this Tribunal and in life generally, leads the Tribunal to find that A may well suffer psychological or emotional issue in consequence of her separation from her father.
The Tribunal accepts that modern technological means of contact are an unsatisfactory substitute for physical presence, and all of the engagement that accompanies it. The Tribunal also accepts that there would be difficulties, including financial difficulties in arranging for the applicant’s daughter and partner to visit him in New Zealand. The applicant’s partner presently performs a parental role with respect to the child, supported by her, and her partner’s family. To his credit, the applicant has committed to providing for his daughter whether that be in Australia or New Zealand. There is no evidence that any of the applicant’s conduct towards A has been negative so as to present harm or physical or emotional trauma. If the applicant remains in Australia and abstains from alcohol and further offending, there is a possibility he may well play a positive role in A’s life during the fourteen years she turns 18.
Of the children impacted by an adverse decision for the applicant in this case, A will undoubtedly be the more severely impacted.
However the applicant also has a 16 year old sister (for whom the applicant’s grandmother is the legal guardian) who will be impacted. The Tribunal has no statement from her. There is no evidence of his conduct impacting on her in a negative way as contemplated by the Direction. Clearly the relationship is non-parental, and less weight is assigned in respect of this child. There is sparse evidence of any regular or close contact between the applicant and any of his sisters. The applicant gave evidence in relation to another sister who lives in New Zealand that he is a “terrible brother”.[120]”
[120] Transcript 5 September 2022, page 52, lines 16-23.
The Tribunal nevertheless accepts that the applicant’s younger sister residing with his grandmother will be impacted by an adverse decision, but not to the same extent as the applicant’s own daughter.
Conclusion: Primary Consideration 3
For the purposes of Primary Consideration 3, the best interests of the children mentioned above weighs slightly in favour of the revocation of the cancellation of the Applicant’s visa.
Primary Consideration 4: The Expectations of the Australian Community
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences 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 refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the possession they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
“This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case”.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[121]
[121] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Analysis – Allocation of Weight to this Primary Consideration 4
The Tribunal respectfully considers that the views of the Australian community as expressed in the Direction are in harmony with the observations by the sentencing judge that[122]:
“The community is sick and tired of this type of violent robbery occurring in their districts so they look to me to try and put a stop to it by imposing heavy penalties.”
[122] Exhibit R1, G7, page 31, lines 34-36.
The applicant has clearly failed to meet the expectations of the Australian community, and the Tribunal is satisfied that there is an unacceptable risk that he will offend again. The Tribunal finds that his record of criminal and other serious conduct is such that the Australian community would expect that his visa remain cancelled.
Conclusion: Primary Consideration 4
Accordingly, Primary Consideration 4 weighs heavily against revocation of the mandatory cancellation of the Applicant’s visa.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.
9.1 International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence.
This Other Consideration 9.1 is not relevant, and is given neutral weight.
9.2 Extent of Impediments if Removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a 25-year-old man, who is in good health (apart from intermittent asthma) physically and mentally. He has a good work record in Australia and that should stand him in good stead with prospective employers in New Zealand.
The Tribunal considers that there will not be any significant language or cultural barriers to his return to New Zealand, as he has lived a substantial part of his life there. His parents live there, and he stayed with them during a stay of some nine months in 2017. Whilst he claims to have gang based relatives, any threat of that did not prevent him from having an extended stay there in 2017, and he appears to have done so without succumbing to any negative influences. If the applicant is telling the truth when he speaks of his gang based relatives, he has demonstrated an awareness of the potential threat to his re-integration into the community, and a capacity to resist it.
It is well acknowledged that New Zealand has a comparable system of social, medical and economic support to that of Australia, and this support would be just as available to the Applicant in establishing himself and maintaining basic living standards as they are to other citizens of that country. There is no reason to believe he will not be able to receive any medical treatment he may require in New Zealand.
In these circumstances, this Other Consideration 9.2 is given neutral weight.
9.3 Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no relevant evidence before the Tribunal so as to enliven consideration of this paragraph.
In the circumstances, the Tribunal gives this Other Consideration 9.3 neutral weight.
9.4 Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision makers, reflecting the principles at paragraph 5.2 thereof, must have regard to the following two factors:
· the strength, nature and duration of ties to Australia; and
· the impact on Australian business interests
9.4.1 Strength, Nature and Duration of Ties to Australia
Decision makers are required by paragraph 9.4.1(1) to consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely.
With the exception of his parents and sister who live in New Zealand, all of the Applicant’s immediate family fall to be considered under paragraph 9.4.1(1) of the Direction. The Tribunal accepts the evidence of those family members who gave evidence on behalf of the Applicant.
The applicant’s deportation will impact very heavily on his Nan, who, notwithstanding her own serious health issues, appears to be devoted to caring for those around her. She will be deprived of his physical assistance while she battles her own health issues.
The applicant’s partner will be forced to continue the role of a single mother which she has had forced upon her during his periods of incarceration and detention. She will be deprived of the applicant’s physical support in dealing with A, but if he is good to his word, she should receive financial support from him to assist with the costs of raising their daughter.
The applicant’s daughter A will go through the unhappy experience of growing up with very little physical contact with her father, and this may well impact as discussed earlier.
The applicant’s sisters who live with Nan are also likely to suffer to some degree, but there is insufficient evidence before the Tribunal so as to enable it to make any specific findings in this regard.
Likewise, there is insufficient evidence before the Tribunal to enable it to make any specific finding as to how the applicant’s deportation will impact on his 70 year old uncle who resides with Nan.
Decision makers are required by paragraph 9.4.1(2) to have regard to the strength nature and ties the Applicant has to the Australian community having regard to how long the applicant has resided in Australia, including whether the applicant arrived as a young child, noting that less weight should be given where the Applicant began offending soon after arrival in Australia, and more weight should be given where the applicant has spent time contributing positively to the Australian community. Decision makers must also have regard to the strength, duration and nature of any family ties or social links with Australian citizens, permanent residents, or those who have an indefinite right to remain in Australia.
The Applicant was a 12 year old child at the time he moved permanently to Australia in 2009. He did not commence offending until some five years later. In addition, the applicant has a good work history contributing positively to the Australian community. In consequence of these factors the Tribunal gives weight to the period the Applicant has resided in Australia having regard for paragraph 9.4.1(2)(a)(i) and (ii) of the Direction.
In addition, the Tribunal gives weight to the letters of support he had received from community members and which are discussed above.
The Tribunal also accepts that the applicant has very strong family ties and social ties of long duration with Australian citizens, permanent residents, or those who have an indefinite right to remain in Australia.
This applicant has lived in Australia for over 12 years, after arriving as a young child, and the Tribunal accepts his work record and that this reflects a contribution to the Australian community. He has lived in Australia from a very young age, and this raises the question of possible increased tolerance of his conduct as contemplated in Paragraph 5.2(4) of the Direction.
Unfortunately for this applicant, the serious nature of his violent offending as recorded in the totality of the sentencing remarks set out above do not make this a case where the Tribunal considers such increased tolerance should be extended.
This Other Consideration 9.4.1 nevertheless weighs in favour of revocation of the mandatory cancellation of the Applicant’s visa.
9.4.2 Impact on Australian Business Interests
There is no evidence before the Tribunal that the Applicant’s deportation will impact on Australian business interests in the manner contemplated by Direction 90.
This Other Consideration 9.4.2 is therefore given neutral weight.
Overall, the Applicant’s links to the Australian community in paragraph 9.4 weighs in favour of revocation of the mandatory cancellation of his visa.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: neutral weight;
(b)extent of impediments if removed: neutral weight;
(c)impact on victims: neutral weight; and
(d)links to the Australian community: weighs in favour of revocation.
CONCLUSION
The Tribunal is now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, The Tribunal finds as follows:
·Primary Consideration 1 weighs very heavily in favour of non-revocation;
·Primary Consideration 2 is given neutral weight;
·Primary Consideration 3 weighs slightly in favour of revocation;
·Primary Consideration 4 weighs heavily in favour of non-revocation; and
·To the extent that Primary Consideration 3 and Other Consideration (d) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations 1 and 4.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
Decision
The decision under review is affirmed.

I certify that the preceding 228 (two-hundred and twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

...............[SGD].........................................................
Associate
Dated: 23 September 2022

Dates of hearing: 5 & 6 September 2022

Date final submissions received: 5 September 2022

Applicant: In person

Solicitors for the Respondent: Abby Tinlin
Minter Ellison Lawyers
Annexure A – Exhibit Register

Exhibit Number

Description of Exhibit

Party

Date of Document

Filing Date

R1

G Documents

(G1 – G18, paged 1 – 81)

R

Various

20 Jul 2022

R2

Supplementary G Documents

(S1 – S74, paged 1 – 183)

R

Various

24 Aug 2022

R3

Respondent’s Statement of Facts, Issues and Contentions dated 24 August 2022

(paged 1-8)

R

24 Aug 2022

24 Aug 2022

Other Evidence

AE1

Applicant’s additional submissions:

1.    TESS Certificate I in Construction dated 04/11/2021

2.    TESS Certificate I in Construction dated 04/11/2021

3.    TESS Certificate I in Construction dated 04/11/2021

4.    Statement of Attainment First Aid dated 11/11/2021

5.    Alcohol & Drug Awareness Certificate dated 20/12/2021

A

4 Nov 2021

11 Nov 2021

20 Dec 2021

10 Jul 2022

AE2

Applicant’s additional submissions:

QCS - Low Security Classification dated 17/11/2021

A

17 Nov 2021

10 Jul 2022

AE3

Statement of Applicant to NCCC – response to Notice of Cancellation of vis dated 13 August 2021

A

13 Aug 2021

10 Jul 2022

AE4

Support letter from:

Ms J Stockdale (undated)

A

-

10   Jul 2022

AE5

Support letter from:

Mr R Hohepa dated 15 September 2021

A

15 Sep 2021

10 Jul 2022

AE6

Support letter from:

Mr B Watts (undated)

A

-

10 Jul 2022

AE7

Support letter from:

Ms D M Ingham (undated)

A

-

10 Jul 2022

AE8

Support letter from:

Mr J Peters (undated)

A

-

10 Jul 2022

AE9

Support letter from:

Ms R Lucas dated 16 September 2021

A

16 Sep 2021

10 Jul 2022

AE10

Applicant’s Smart Recovery Attendance Participation form dated 11 July 2022

&

Copy of Meeting for Smart Recovery

A

11 Jul 2022

12 Jul 2022

AE11

Email from Mr M Van Der Ryken dated 15 July 2022 – Letter of support and Proof of work

A

15 Jul 2022

15 Jul 2022

AE12

Applicant’s Smart Recovery Attendance Participation form

A

-

19 Jul 2022

AE13

Applicant’s Smart Recovery Attendance Participation form & meeting reminder

A

-

20 Jul 2022

AE14

Applicant’s Letter – Nature of Justice letter

A

-

25 Jul 2022

AE15

Letter of support dated 27 July 2022 Ms R Opbroek

A

27 Jul 2022

4 Aug 2022

AE16

Letter of support dated 4 August 2022 of Mr K Lucas

A

4 Aug 2022

4 Aug 2022

AE17

Letter of support of Ms N L Oproek - undated

A

-

4 Aug 2022

AE18

SMART Recovery attendance/ participation form

A

-

4 Aug 2022

AE19

Applicant’s Medical records from IHMS

(87 pages)

A

-

10 Aug 2022

AE20

Applicant’s Remorse letter (undated)

(1 paged)

A

-

10 Aug 2022

Exhibit Number	Description of Exhibit	Party	Date of Document	Filing Date
R1	G Documents (G1 – G18, paged 1 – 81)	R	Various	20 Jul 2022
R2	Supplementary G Documents (S1 – S74, paged 1 – 183)	R	Various	24 Aug 2022
R3	Respondent’s Statement of Facts, Issues and Contentions dated 24 August 2022 (paged 1-8)	R	24 Aug 2022	24 Aug 2022
Other Evidence
AE1	Applicant’s additional submissions: 1. TESS Certificate I in Construction dated 04/11/2021 2. TESS Certificate I in Construction dated 04/11/2021 3. TESS Certificate I in Construction dated 04/11/2021 4. Statement of Attainment First Aid dated 11/11/2021 5. Alcohol & Drug Awareness Certificate dated 20/12/2021	A	4 Nov 2021 11 Nov 2021 20 Dec 2021	10 Jul 2022
AE2	Applicant’s additional submissions: QCS - Low Security Classification dated 17/11/2021	A	17 Nov 2021	10 Jul 2022
AE3	Statement of Applicant to NCCC – response to Notice of Cancellation of vis dated 13 August 2021	A	13 Aug 2021	10 Jul 2022
AE4	Support letter from: Ms J Stockdale (undated)	A	-	10 Jul 2022
AE5	Support letter from: Mr R Hohepa dated 15 September 2021	A	15 Sep 2021	10 Jul 2022
AE6	Support letter from: Mr B Watts (undated)	A	-	10 Jul 2022
AE7	Support letter from: Ms D M Ingham (undated)	A	-	10 Jul 2022
AE8	Support letter from: Mr J Peters (undated)	A	-	10 Jul 2022
AE9	Support letter from: Ms R Lucas dated 16 September 2021	A	16 Sep 2021	10 Jul 2022
AE10	Applicant’s Smart Recovery Attendance Participation form dated 11 July 2022 & Copy of Meeting for Smart Recovery	A	11 Jul 2022	12 Jul 2022
AE11	Email from Mr M Van Der Ryken dated 15 July 2022 – Letter of support and Proof of work	A	15 Jul 2022	15 Jul 2022
AE12	Applicant’s Smart Recovery Attendance Participation form	A	-	19 Jul 2022
AE13	Applicant’s Smart Recovery Attendance Participation form & meeting reminder	A	-	20 Jul 2022
AE14	Applicant’s Letter – Nature of Justice letter	A	-	25 Jul 2022
AE15	Letter of support dated 27 July 2022 Ms R Opbroek	A	27 Jul 2022	4 Aug 2022
AE16	Letter of support dated 4 August 2022 of Mr K Lucas	A	4 Aug 2022	4 Aug 2022
AE17	Letter of support of Ms N L Oproek - undated	A	-	4 Aug 2022
AE18	SMART Recovery attendance/ participation form	A	-	4 Aug 2022
AE19	Applicant’s Medical records from IHMS (87 pages)	A	-	10 Aug 2022
AE20	Applicant’s Remorse letter (undated) (1 paged)	A	-	10 Aug 2022

This document also recorded that the applicant's family in
New Zealand are all gang affiliated and his return would mean he would face difficulty obtaining employment due to his name and his family's reputation. It also recorded "You have been assessed as having a Risk of Reoffending Prison Version (RoR-PV) score of 17 which indicates you fall into the category of prisoners who pose a high risk of further general offending. I note this score does not indicate your risk of further violent reoffending. Your criminal history is minor however demonstrates a clear escalation in offending. I also note you have not completed any programs or interventions whilst in custody nor are you currently waitlisted for participation… Your institutional behavior has been reported to be of an acceptable standard since your admission into custody; you are currently employed as an Industry Team Leader”.

[2022] AATA 3151

23 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2022/5556
General Division	)

Dates of hearing:	5 & 6 September 2022
Date final submissions received:	5 September 2022
Applicant:	In person
Solicitors for the Respondent:	Abby Tinlin Minter Ellison Lawyers