Maka and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Maka and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 106 (2 February 2024)
Division:GENERAL DIVISION
File Number(s): 2023/8817
Re:Mikaele Maka
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mr Rob Reitano, Member
Date:2 February 2024
Place:Sydney

I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of Mikaele Maka’s Class TY Subclass 444 Special Category (Temporary) visa.

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Mr Rob Reitano, Member
CATCHWORDS
MIGRATION –– visa cancellation – protection of the community – very serious criminal offending – harm to community – mid-range risk of reoffending – expectations of the Australian community – best interests of minor children – nature, duration and ties to community – significance of being in Australia during and since formative years – impediments if removed to New Zealand – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
CRNL v Minister Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
SECONDARY MATERIALS
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
REASONS FOR DECISION
Mr Rob Reitano, Member
2 February 2024

This matter concerns an application for a review of a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) that refused to revoke the cancellation of Mr Mikaele Maka’s (Mr Maka’s) Class TY Subclass 444 Special Category (Temporary) visa (visa) because the delegate was not satisfied that there was ‘another reason’ why the mandatory decision that cancelled the visa under s.501(3A) of the Migration Act 1958 (Cth) (Act) should be revoked.
The effect of the delegate’s decision is that Mr Maka is unable to remain lawfully in Australia and will, if the decision is left in place, be required to return to his country of citizenship, New Zealand, where he has not lived or visited since he was eight years of age.
I have, after having reviewed the delegate’s decision, decided to revoke the decision cancelling the visa because I am satisfied that there is ‘another reason’ to set aside the cancellation of the visa and substitute in its place a decision revoking the cancellation of the visa, being Mr Maka’s strong ties to the Australian community and the best interests of his three younger brothers and his younger sister. These are my reasons for taking that course.
RELEVANT BACKGROUND
On 20 March 2023 Mr Maka’s visa was cancelled because s.501(3A) of the Act required the Minister to cancel it on being satisfied that Mr Maka had a substantial criminal record, defined in the Act by reference to a person having been sentenced to imprisonment for more than 12 months, and because he was serving that sentence full time in a custodial institution. Mr Maka had a substantial criminal record because he had been sentenced to an aggregate sentence of imprisonment for four years after pleading guilty to an offence of aggravated break and enter and commit indictable offence (stealing) in company and an offence of destroy or damage property in company.
On 20 April 2023 Mr Maka made representations to the Minister about why the cancellation of the visa should be revoked. Those representations were made in accordance with the Minister’s invitation to Mr Maka to make them which was contained in the Minister’s correspondence that advised Mr Maka that his visa was cancelled. The representations were also made in accordance with the relevant regulatory requirements.
On 17 November 2023, as I have already observed, a delegate of the Minister made the decision refusing to revoke the decision cancelling the visa.
On 24 November 2023 Mr Maka made his application to the Tribunal seeking a review of the delegate’s decision.
THE ISSUE
The only issue is whether I am satisfied that there is ‘another reason’ why the decision cancelling the visa should be revoked.
This is because s.501CA(4)(b)(ii) of the Act says that revocation of a decision cancelling a visa can happen, but only on one of two bases. The first is in s.501CA(4)(b)(i) of the Act which requires that the Minister be satisfied that Mr Maka passes the character test in s.501, which obviously he cannot because of his sentence of four years imprisonment. The other basis is in s.501CA(4)(b)(ii) of the Act, which requires that the Minister be satisfied that ‘there is another reason why the original decision [the decision to cancel the visa] should be revoked’. That is the basis upon which Mr Maka seeks to have the delegate’s decision overturned.
The Tribunal in a review of a decision refusing to revoke the cancellation of a visa stands in the place of the Minister so that any satisfaction that the Minister was required to have is one that the Tribunal must have in order for Mr Maka to have the decision cancelling his visa revoked. It follows that the only issue is whether I am satisfied that there is ‘another reason’ to revoke the cancellation of the visa.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
The issue concerning satisfaction about whether there is ‘another reason’ why the Minister’s decision cancelling the visa should be revoked requires the making of an evaluative judgment about there being a reasoned basis for revoking the visa cancellation.
The satisfaction about there being ‘another reason’ is guided by Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction) because s.499(2A) of the Act requires the Tribunal to comply with the Direction in performing its functions and in the exercise of its powers.
The Direction identifies ‘principles’ which provide a framework to decide whether a decision to revoke a decision cancelling a visa should be made, and ‘considerations’ that are the matters a decision-maker must consider in making that decision, but only to the extent that they are relevant.[1]
[1] Paragraphs 5.2(6) and 6 of the Direction.
The ‘principles’ are relatively straightforward and are found in paragraph 5.2 of the Direction. I will refer to them where necessary in these reasons.
The Direction when referring to ‘considerations’ refers to two categories of ‘considerations’ which are identified as ‘primary considerations’ and ‘other considerations.’
The ‘primary considerations’ relevant to this matter are:
·protection of the Australian community from criminal or other serious conduct;
·the strength, nature and duration of ties to Australia;
·the best interests of minor children in Australia; and
·the expectations of the Australian community.[2]
[2] Paragraph 8 of the Direction.
The only ‘other consideration’ relevant to this matter is the extent of impediments to Mr Maka of re-establishing himself if he is removed from Australia to New Zealand.
The Direction says, ‘primary considerations should generally be given greater weight than the other considerations.’[3] The word ‘generally’ contemplates cases where it may not be appropriate to do that.[4] No single ‘primary consideration’ or ‘other consideration’ is required to be given greater importance than any other: the importance attaching to each consideration is left to the decision-maker. Further, the Direction lays down within each consideration particular matters that must be taken into account.
[3] Paragraph 7(2) of the Direction.
[4] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [76] (per Charlesworth J).
The process of weighing the considerations involves considering them and the matters to which the Direction refers and giving each of them importance. It is also necessary to engage in a process of comparing considerations one to the other to determine which of them, or group of them, is of greater or lesser importance to the decision to be made. The process of weighing has as its focus arriving at a decision about whether there is ‘another reason’ to make what is obviously a significant decision about revoking a visa cancellation.[5]
[5] CRNL v Minister Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [34].
The obligation ‘to consider’ recognises that there are very real consequences for people and the wider community resulting from a decision not to revoke, or to revoke, the cancellation of a visa. The obligation ‘to consider’ does not involve the completion of a checklist, should not depend upon technical legal arguments and is not formulaic.[6] The decision will impact many people: an applicant, an applicant’s children, immediate and extended family, friends and potentially others such that it is important to give genuine consideration to all matters.[7] There are also potential serious ramifications for the Australian community which is demonstrated by the need to consider the protection of the community against future criminal offending and the expectations of the community.
[6] Ibid at [38].
[7] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].
All this points to the need to consider things carefully, weighing up the importance of the private and public interests that may or will be affected, and reaching a firm and reasoned conclusion about their respective and relative importance. It is ultimately that to which the Direction is focused which when applied ensures that all relevant interests are considered and weighed and given their respective importance, properly and appropriately.
I will deal with each of the relevant considerations in turn, and ascribe them weight, before weighing and balancing them against each other.
PROTECTION OF THE AUSTRALIAN COMMUNITY
The Direction requires me to consider the nature and seriousness of Mr Maka’s conduct which includes both criminal offending and other conduct, and the risk to the Australian community, should he commit further offences or engage in other serious conduct. The Direction requires me to have regard to the fact that the Australian Government and community regard offences that involve violence as very serious.
I am required to have regard to the sentence imposed, the frequency of the offending, the existence of any increased trend in seriousness in the offending and the cumulative effect of repeat offending.
Mr Maka’s most serious criminal offending involved the offences that led to the cancellation of the visa, being aggravated break and enter and commit indictable offence (stealing) in company and the offence of destroy or damage property. They were both committed on 30 January 2021 when Mr Maka and another man broke into a family home in Sydney’s western suburbs where a woman and her three children, at that time aged 7, 11 and 16 years, lived. The woman and her children were not at home at the time the offences were committed. Mr Maka gave evidence that he did not know at the time the woman lived with her children in the home, he believed the owner of the house was a drug dealer.
Returning to the chronology, after breaking into the house Mr Maka and his accomplice ransacked every room in the house and the garage, with every cupboard and drawer being emptied. Goods valued at about $200,000 were stolen. Items of sentimental value, including jewellery, were taken. None of them were recovered. All the beds in the house were broken, a leather lounge was slashed, holes were made in the walls, a spa was damaged, flyscreens and windows were damaged and a safe in the garage had its door ripped off. The damage was, so it seems, a response to the fact that money could not be found.
The aggravated break and enter and commit indictable (stealing) offence in company offence carried a maximum sentence of 20 years imprisonment. The offence of destroy or damage property in company carried a maximum sentence of six years imprisonment. The sentencing judge placed the seriousness of the first offence in the mid-range and the destroy or damage property offence as above the mid-range. Both offences were aggravated by the fact that they were committed in the victims’ home. The sentencing judge imposed an aggregate sentence of four years imprisonment. That sentence reflects objectively very serious offending. Four years out of anyone’s life is significant.
Both offences were objectively very serious and so much is confirmed by the sentence. That they involved violence, albeit to property, in someone’s home, a place which most people regard as somewhere that should be safe for them to be, is a significant matter that supports their objectively very serious nature.
On 23 February 2021 Mr Maka committed a series of other offences: three offences of destroy or damage property, one of affray and one of armed with intent to commit indictable offence. The offences resulted from a fight that Mr Maka and a co-accused were involved in suburban Sydney. The fight involved about ten people who were all armed with weapons that included knives and poles. Mr Maka recorded part of what happened on his phone which included him and others yelling the words ‘Fucking pussies. Fuck these 27 cunts mother-fucker’. The reference to ‘27’ is, apparently, a reference to a gang that has its home in Sydney’s western suburbs. Mr Maka also recorded his co-accused throwing a pole towards some people, but it did not connect. The poles and some of the weapons were obtained by Mr Maka from an adjoining private property. He also ran from the police on their arrival and damaged a fence after running to an adjoining property.
Mr Maka was placed on a 12-month community corrections order for these offences. He was also charged with three offences of ‘enter enclosed land not prescribed premises without lawful excuse’ for which he received the benefit of an order finding the offences proven but having no conviction recorded.
These offences also involved violence, but the sentence imposed in respect of all of them suggests that the offending was not of a very serious nature. Nonetheless the Australian government and the community regard offences involving violence as very serious, and I therefore should do likewise.
On 10 and 11 April 2021 Mr Maka breached his then bail conditions so far as they concerned curfew, but no action appears to have been taken as a consequence other than him being arrested, having his bail revoked and him seeking bail again which he was granted.
On 30 September 2021 Mr Maka breached his then bail conditions as he did not observe the curfew condition. He breached the condition to attend a ‘mate’s birthday party’. No action appears to have been taken against him because of that breach either.
Whilst incarcerated Mr Maka committed two institutional offences: one involving having prohibited goods and the other involving being in someone else’s cell. Neither offence involved violence, and both were committed in early January 2023. Mr Maka was placed on 56 days good behaviour for the first offence. He was confined to his cell for seven days in respect of the second offence. Neither offence appears to have been serious.
So far as Mr Maka’s offending is concerned the violent offending appears to have been limited to two days in a period of about three weeks in early 2021. The other offences (the breaches of bail conditions and the institutional offences) did not involve violence and do not on the face of things appear serious. The fact that none of them carried any significant punishment confirms so much. I do not consider it can be fairly said that the offences involve an increase in seriousness over time especially having regard to the sentences imposed. Nonetheless they demonstrate a degree of disrespect for lawful authority. The frequency of his offending so far as serious matters or, more accurately, very serious matters is concerned appears to be limited to two days in early 2021.
In any event given the very serious nature of the offences committed on 30 January 2021 Mr Maka’s overall offending should be regarded as being very serious.
Next, I am required to consider the nature of the harm to individuals and the community should Mr Maka reoffend should he be permitted to live in the Australian community.
Mr Maka’s criminal offending has not involved physical harm to anyone, even though it has involved violence to property. There is no evidence of any particular or significant harm, whether physical or psychological, to anyone as a result of Mr Maka’s offending. I should not ignore the fact that people who have their homes violated and vandalised even when they are not present are likely to be significantly emotionally and psychologically affected.
There is the enormous financial loss caused to the victims by the stealing of property that was not recovered which exceeded $200,000 in value and the loss occasioned by the significant damage to property in the house. There is also the social and economic harm to the community arising from the law enforcement endeavours that go with investigating, charging, prosecuting and imprisoning Mr Maka should he commit any further offences.
The harm caused by the same or similar offending is likely to be significant although in all likelihood limited to damage to property and associated enforcement costs.
Finally, I need to consider the likelihood of Mr Maka engaging in criminal conduct in the future. I am required to assess this having regard to the available evidence and information. The evidence about Mr Maka’s risk of reoffering is fairly limited. His offending appears to be related to his use and need for drugs of addiction, most recently methamphetamine. Although he claims to have given that addiction away in February 2021, a urinalysis whilst in prison suggests otherwise. I will return to this later.
There are a number of matters that are important which suggest that the risk of reoffending is not high and most likely to be in the medium, middle or moderate range or perhaps a little less than that.
First, Mr Maka pleaded guilty to his most serious offences which is indicative of an acceptance of his wrongdoing and remorse. The sentencing judge accepted that Mr Maka was remorseful for his offending. He has at various time repeated his acceptance of his responsibility for what he did and its consequences for the victims, and others. The sentencing judge assessed Mr Maka as having ‘reasonable prospects of rehabilitation’.
Second, Mr Maka explained the circumstances that existed immediately before his offending which involved him losing his job and his girlfriend which caused him to fall in with the wrong crowd. It was then that he began using drugs including methylenedioxymethamphetamine (MDMA). Those people are people he no longer has anything to do with. He has taken active steps to rid his life of them: deleting them from social media and changing his phone number, since he breached his curfew condition attached to his bail in September 2021.
Third, Mr Maka has completed some courses or parts of courses involving intensive learning, self-help and drug and alcohol treatment whilst in prison. In particular he completed the Intensive Drug and Alcohol Treatment Program which formed one of the reasons for why he was recommended for parole on 23 October 2023. He also saw other medical professionals whilst in prison who assisted him with his mental health issues.
Fourth, on 23 October 2023 Mr Maka was rated as being of medium risk of re-offending on the Level of Service Inventory – Revised which is a tool used to assess the service needs of criminal offenders that is often used to give an indication of the likelihood of reoffending. Importantly that rating formed the basis for the development of a supervision plan for Mr Maka should he be released on probation. The supervision plan rationally is directed at minimising or mitigating that medium risk of reoffending.

Fifth, if released from prison Mr Maka will be on parole for a few years which will have conditions attached to it which if breached are likely to see him returned to prison. The Minister suggested that Mr Maka’s previous experience in breaching bail conditions did not augur well for him complying with his parole conditions. The spectre of returning to prison, his experience of prison to date and the prospect of exclusion from Australia and returning to New Zealand should be matters that will operate as a deterrent to him of repeat offending. He acknowledged in his evidence his awareness of those things being the consequences of repeat offending.
Sixth, Mr Maka has a large network of social support available to him especially by way of his immediate family, namely his mother, father and siblings, which the Minister pointed out was the same network of extensive support he had available to him before he went to prison and before he had his visa cancelled. The fact that those family members and others have now confronted the very real prospect that their son and brother was incarcerated, and perhaps more significantly faced exclusion from Australia, suggest that that network is likely to provide a sound basis for guarding against repeat offending in future.
Seventh, Mr Maka will have support from his parents with whom he will live if he is permitted to remain in Australia. He will be supervised and monitored by appropriate community corrections officers. He will be able to access services that will assist him reintegrate into the community.
Eighth, I gained the impression from Mr Maka’s oral evidence that he is well and truly determined to stay out of trouble. It is clear he has seen that his social and familial relations especially those with his younger brothers and sister have been affected by the separation of imprisonment. His stated determination to avoid offending again is something that should be given some, albeit with caution, weight.
Against these matters is the fact that Mr Maka was taking non prescribed drugs whilst he was in prison between February and May 2023 whilst he was taking part in the Real Understanding of Self Help program which was the first part of the Intensive Drug and Alcohol Treatment Program. He was then prescribed drugs to assist him avert his addiction. Mr Maka said that if he was released into the community at least in the short term he would consider enrolling in a program. Likewise, his disrespect for lawful authority in breaching his bail conditions and taking illicit drugs in prison are matters that are cause for concern but in my assessment not considerably so given the other factors.
In my assessment the risk of Mr Maka reoffending is at about the mid-range or moderate level of risk.
I am satisfied that the nature and seriousness of the Mr Maka’s criminal conduct to date is very serious. The consequence of him reoffending will be harmful to the community and individuals but the harm is not so significant that it precludes the possibility of revoking the cancellation. The likely harm is certainly not at the high end of harm that often follows very serious criminal offending which involves serious and ongoing harm to members of the community or the community more generally. That is unlikely in this case. I do not consider that the risk is unacceptable mainly because it does not pose a significant risk of physical harm to people and is more likely to be more directed to property and financial loss. That together with the middle of the range risk satisfies me that the risk is one the Australian community could take.
This consideration weighs firmly against revoking the decision cancelling the visa.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
I am to give weight to the expectations of the Australian community, the expectations that people who are allowed to live and be in Australia will obey Australian laws and that where someone who has been permitted to stay in Australia ‘has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia’. This means that ‘non revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the non-citizen should not … continue to hold a visa.’
I must decide whether more or less weight is to be given to the community expectation of non-revocation of mandatory cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[8] This involves an evaluation about how strong this factor is in the particular circumstances of the case.
[8] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [77] (per Charlesworth J).
The nature of the criminal offending is very serious as it involves violence. The offences are very serious, but the conduct if repeated and the harm likely to be caused if the offending were to be repeated is not so serious that revoking the mandatory cancellation is out of the question. The offences are not in the category of the ‘particular’ offences identified in the Direction that make non revocation appropriate simply because of the nature of the offences. There is no doubt that this consideration weighs against revocation of the cancellation of the visa but as will be seen later I do not give it significant weight when it comes to weighing the relative importance of the primary considerations, mainly because Mr Maka’s ties to the community and the best interest of his minor siblings are in my assessment much more important. I will say more about this later.
The expectations of the Australian community weigh in favour of non-revocation.
STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
The Direction requires me to consider the impact of my decision upon Mr Maka’s immediate family members in Australia where they are Australian citizens, Australian permanent residents or people with a right to lawfully remain in Australia indefinitely. The Direction requires that I consider the strength, duration and nature of family ties or social links generally to people in those categories.
The Direction also requires me to consider the strength, nature and duration of other ties that Mr Maka has to the Australian community. The Direction requires regard to the length of time he has resided in the Australian community giving ‘considerable weight to the fact that [he] has been ordinarily resident in Australia during and since [his] formative years, regardless of when [his] offending commenced and the level of that offending’. The Direction requires more weight to be given to the time he has contributed positively to the Australian community and less weight to the time he was not in Australia during his formative years and where the offending started soon after arriving in Australia.
Mr Maka has been in Australia since July 2010 when he was eight years of age. He came here with his parents and three of his brothers. His immediate and extended family are all originally Tongan nationals, although it seems some of them obtained New Zealand citizenship. Mr Maka’s mother, father, six brothers and sister all live in Australia. The Minister conceded that given that the three oldest brothers have been here since 2010 they were likely to have a lawful right to be in Australia indefinitely. Mr Maka identified an uncle and aunt and three cousins who live in Australia. He also claimed to have a large number of other aunts and uncles and cousins living in Australia as part of his extended family.
The Minister accepted that members of Mr Maka’s immediate family and his extended family so far as it comprised the identified aunt, uncle and cousins will be adversely affected by not revoking the cancellation and seeing their son, brother, nephew and cousin return to New Zealand. They will not have Mr Maka in their day-to-day lives if he is removed to New Zealand and any contact with him will be by telephone or social media platforms.
The Minister also accepted that Mr Maka was ordinarily resident in Australia during and since his formative years, a matter which I should give ‘considerable weight’ regardless of when his offending occurred and, in this case significantly, regardless of the level of the offending.
The Minister also accepted that Mr Maka had made some, albeit limited, contribution to the Australian community through employment as a warehouse worker even though he has been unemployed since 2020. It appears he lost his employment through no fault of his own as result of the pandemic. He has also contributed to the community through his engagement in religious organisations. He has contributed to the community through his engagement at school in Australia and his participation in sport. He has friends in the Australian community.
Mr Maka’s strong ties to his immediate and extended family and his contribution to the community are matters that cause me to give this consideration weight in favour of there being ‘another reason’ to revoke the cancellation of the visa. The fact that Mr Maka has been in Australia since he was eight years of age, some 14 years ago, and there were about 11 years before he committed his first criminal offence means I should, regardless of the seriousness of his offending, give this consideration considerable weight.
This consideration strongly weighs in favour of revoking the decision to cancel the visa.
BEST INTERESTS OF MINOR CHILDREN
The Direction requires me to make a determination about whether cancellation of the visa is in the best interests of minor children affected by the decision and to the extent that their interests might differ I must consider them separately. There are a series of matters relevant to this consideration which I will address in the context of the particular facts.
There are four minor children relevant to this consideration, Mr Maka’s sister, a girl aged six years, and Mr Maka’s brothers, three boys aged nine, 12 and 16 years. The three youngest have 12, nine and six years to go before they are 18 years of age which is in each case a significant period in their childhood although obviously more significant for the younger children. Mr Maka is their older brother and not their parent. They each have their parents to care for them. Mr Maka is not their primary caregiver. They each have other older brothers as well. Any positive role Mr Maka will have in the children’s life will be dependent upon his ability to stay drug free and out of trouble. My finding that he has a mid-range risk of reoffending means I am unable to place any significant weight on this aspect of the best interests of the children.
The Minister accepts that Mr Maka has a strong relationship with each of his brothers and sisters and has played an active part in their upbringing. Having grown up with them he obviously has a close bond with each of them. He describes his sister as ‘the princess of the family’ which shows an affection beyond the superficial. He sees her every week whilst in prison when his parents visit. He sees each of the brothers every fortnight when they visit. He speaks to them on the phone once a week. He has maintained his relationship with them since his incarnation.
Despite my findings about not being able to place any weight on Mr Maka being a positive influence on his brothers and sister and his lack of a parental relationship or primary carer role with respect to the minor children, I consider that this consideration weighs reasonably firmly in favour of revocation mainly because of the strength of the bond between the children, the fact that there are four of them and the relatively long period each of them have before they are 18 years of age.
EXTENT OF IMPEDIMENTS IF REMOVED
The Direction requires me to consider the extent of any impediments that Mr Maka may face in establishing himself and maintaining basic living standards considering his age, health, any language barriers and any social, medical and economic support available to him if he is returned to New Zealand.
Mr Maka has been in Australia for 14 years. He has not lived in New Zealand since he was a young child. He speaks English, the national language of New Zealand. He may have drug addiction, but there is no evidence that he suffers from any other adverse health problems. He is relatively young and articulate. New Zealand is a liberal democracy much like Australia. It is unlikely that Mr Maka would confront any cultural problems adjusting to life there. His biggest problem adjusting to life in New Zealand is likely to be the lack of any social support from friends or family as he does not know anyone in New Zealand.
Mr Maka’s impediments to establishing and maintaining a basic living standard in New Zealand are not significant such that I only give this consideration very little weight in favour of revoking the decision cancelling the visa.
THE RELATIVE WEIGHT OF THE CONSIDERATIONS
I have found that the protection of the Australian community weighs firmly in favour of not revoking the cancellation of the visa, mainly because of the mid-range risk of reoffending and the fact that the offending, while very serious, did not involve permanent or serious physical harm to people or the community. Even though the offending is very serious those things mean that the risk is one that the community could take.
The expectations of the community also weigh in favour of non-revocation, but I do not consider in the scheme of things when compared to the remaining two relevant primary considerations that I should give this consideration much weight. It is not as important as the best interests of Mr Maka’s younger brothers and sister or the strong ties he has to his immediate and extended family and to the community more generally, given that he has been here during and since his formative years.
The best interests of minor children weighs fairly firmly in favour of revoking the cancellation especially because of the strength of the bond between Mr Maka and his younger brothers and sister that has been created by the close relationship he has had with them over the years. Similarly, the ties that he has to his family, his two other brothers, his uncle, aunt and cousins are important. It is also important that I have regard to the fact that Mr Maka has been in Australia during and since his formative years which is a matter I must give significant weight to regardless of his serious offending.
The impediments Mr Maka will face re-establishing himself in New Zealand are not as important as any of the primary considerations.
In my assessment the considerations involving the best interests of Mr Maka’s younger brothers and sister, his ties to the community, mainly his mother, father, other brothers, aunt, uncle and cousins and the fact that he has been in Australia during and since his formative years and his long time in and contributing to the community are relatively more important than the other primary considerations concerning the protection of the Australian community and the expectations of the Australian community.
THERE IS ANOTHER REASON TO REVOKE THE CANCELLATION
Mr Maka’s strong ties to the Australian community and the best interests of his three younger brothers and his younger sister are the other reasons why the decision cancelling the visa should be revoked.
DECISION
I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of Mikaele Maka’s Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

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Associate
Dated: 2 February 2024

Date(s) of hearing: 30 January 2024

Applicant: Self-represented

Solicitors for the Respondent: Ms G Gutmann, Minter Ellison

[2024] AATA 106

2 February 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Date(s) of hearing:	30 January 2024
Applicant:	Self-represented
Solicitors for the Respondent:	Ms G Gutmann, Minter Ellison