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

[2020] AATA 2175

Mareiti and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2175 (10 July 2020)

Division:GENERAL DIVISION

File Number(s):2020/2374      

Re:Metuangaro Alexander Mareiti

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr Rob Reitano, Member

Date:10 July 2020

Place:Sydney

I affirm the decision refusing to revoke the mandatory cancellation of Mr Mareiti’s Class TY Subclass 444 Special Category (Temporary) Visa issued to him on 20 October 1998.

................[sgd]...................................................

Mr Rob Reitano, Member

CATCHWORDS

MIGRATION – cancellation of Applicant’s Class TY, Subclass 444 Special Category (Temporary) visa – Applicant is a citizen of New Zealand – failure of the character test – whether there is another reason to revoke the visa cancellation – Direction No. 79 – protection of the Australian community – best interests of minor children in Australia – expectations of the Australian community – international non-refoulement obligations – strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed

LEGISLATION

Crimes Act 1900 (NSW) s 97

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

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

SECONDARY MATERIALS

Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA

REASONS FOR DECISION

Mr Rob Reitano, Member

10 July 2020

1. On 20 October 1998, Metuangaro Alexander Mareiti (Mr Mareiti) was given permission to stay in Australia when he was granted a Subclass 444 Special Category Visa (Visa). He was 15 months old at the time. He came to Australia because his parents had decided to make a better life for their family. Mr Mareiti has never left Australia since the grant of the Visa. He has no connection, other than his citizenship, with New Zealand.

2. On 21 March 2019, the Minister was required to cancel the Visa under ss.501(3A) of the Migration Act 1958 (Cth) (Act). This was because the Minister was satisfied that Mr Mareiti had a substantial criminal record, as a result of Mr Mareiti being sentenced on 18 January 2019 to four years imprisonment for the criminal offence of robbery in company under s.97 of the Crimes Act 1900 (NSW). 

3. On 3 April 2019, responding to an invitation by the Minister, Mr Mareiti made representations under ss.501CA(4)(a) about why the Minister should under ss.501CA(4) revoke his decision to cancel the Visa. On 16 April 2019, those representations were considered by the Minister’s delegate who decided to reject Mr Mareiti’s request that the mandatory cancellation of the Visa be revoked (Decision).

4. Mr Mareiti has applied under ss.500(1)(ba) for a review of the Decision.

5. I have decided to affirm the Decision and what follows are my reasons for doing so.

   FACTS

6. Mr Mareiti was born in New Zealand in 1997. He is a citizen of New Zealand. He came to Australia with his parents when he was 15 months old and has remained in Australia since then because he has continued to hold the Visa. 

7. He and his family initially lived in Campbelltown in Sydney’s south western suburbs. His parents separated when he was about three years old. After his parents separated, he said he lived with his father and his stepmother and those of his brothers and sisters who lived in Sydney.  His father drank alcohol to excess and was violent towards his children including Mr Mareiti. Mr Mareiti was expelled from school when he was about 15 years old for fighting. It was at about that time that he started to smoke marijuana, which he did about four days a week, and to drink alcohol. His use of marijuana and its frequency was undoubtedly at some considerable  expense. Mr Mareiti has never been in full time permanent employment, although there is some material that suggests he had employment for some very short periods, about three months, as a labourer. At some point, he started to receive the Youth or Newstart allowance. A fair description, used by Judge O’Brien who sentenced him in January 2019, is that his upbringing was ‘dysfunctional, violent’ and that he ‘has suffered significant disadvantage’.

8. Mr Mareiti committed a number of offences involving stealing and dishonesty before his more serious criminal offending started in January 2016.

9. On 22 January 2016 Mr Mareiti committed two offences of robbery in company. On 8 September 2017 he was convicted and sentenced to a term of 13 months imprisonment with a non-parole period of seven months for one of those offences. The other was taken into account on a Form 1. The offence for which Mr Mareiti was imprisoned involved him stealing wrist watches from two young boys after ‘placing them in fear’.

10. On 16 March 2017 Mr Mareiti committed three offences of larceny, five offences of attempted larceny and one offence of possessing implements to enter or drive a conveyance. He was convicted and sentenced to imprisonment for each of those offences on 19 September 2017. For each of these offences he received a fixed term of imprisonment of one month that commenced in some cases on either 26 December 2017 and in others on 26 January 2018, which were in all cases to be served concurrently. 

11. On 26 May 2017 Mr Mareiti committed another offence of robbery in company. He was arrested and placed into custody later that night and remined in custody from then until about 30 January 2019 when he was put into detention. On 18 January 2019, as I have already said, he was sentenced to four years imprisonment with a non-parole period of two years and three months. The sentence commenced on 26 October 2017 so that it would expire on 25 October 2021 and Mr Mareiti would be eligible for parole on 25 January 2020. 

12. The circumstances of that offence assume some importance in this review. The offence was committed during the night when Mr Mareiti, who was with at least three other males, approached a 60-year-old man, a Mr S, in a park in Campbelltown. Mr Mareiti, without warning, hit Mr S on the head and knocked him to the ground. Mr S’s wallet containing $300 and some identification papers was stolen. Mr Mareiti assaulted Mr S after his wallet was taken by repeatedly punching and kicking him. Mr S suffered injures involving extensive bruising and swelling to the side of his face. He was taken to hospital by ambulance. Mr Mareiti had been drinking cask wine with the other men in the park that night, although he suggested at one time that he had in fact been drinking ‘Jack Daniels’. Mr Mareiti was also affected by cannabis. At the time that the offence was committed Mr Mareiti was on bail for the offences that he committed January 2016 and March 2017.

13. Mr Mareiti’s sentencing proceeded on the basis that Judge O’Brien was satisfied beyond reasonable doubt that it was Mr Mareiti that struck Mr S initially causing him to fall to the ground and that Mr Mareiti had continued to assault Mr S, by kicking and punching him after he had fallen to the ground and after his wallet his had been taken. Mr Mareiti denied these things in his evidence both before Judge O‘Brien and before the Tribunal.

14. I have already recorded Judge O’Brien’s observations about Mr Mareiti’s upbringing. I do not repeat them. It is necessary to add that Judge O’Brien said that ‘all links with his family have broken down and he presents as an isolated young man. He has nothing to do with this father and his siblings and half siblings who reside in south-western Sydney’ and that he had had one visitor in almost 20 months in custody. Mr Mareiti said in his evidence that he had two visitors in the entire time he was in custody. When Mr Mareiti was sentenced by Judge O’Brien, he said if he were released from custody he would return to his friends in Campbelltown and resume his life of ‘antisocial criminal behaviour’. When he was sentenced a pre-sentence report dated 26 September 2018 said that he was a medium to high risk of re-offending.

15. After he was sentenced Mr Mareiti was moved to Oberon Correctional Centre where he successfully participated in the Young Adult Offender Program. After that he was moved to the Outer Metropolitan Multi-Purpose Centre where he participated in the Intensive Drug and Alcohol Treatment Program. Mr Mareiti participated in several other courses and programmes whilst he was in custody, most notably a course to obtain a forklift licence and a first aid course. He also completed the EQUIPS Foundations, Aggression and Addiction courses. His case notes about his time in custody say he was generally positive although there was reference to him being aggressive at times when he did not get his own way. He had only one minor misconduct matter against him for failing to adhere to the Centre routine and he was cautioned and reprimanded for that.

16. While in custody Mr Mareiti was subject to urine tests for the purpose of detecting whether he had used illicit drugs. His records indicate that although no drugs were detected in his system on 23 August 2018 and 30 March 2018, he was tested 26 times between 5 August 2019 and 11 November 2019 and on 19 occasions returned positive tests for methamphetamine, amphetamine, buprenorphine, morphine and cannabis. Mr Mareiti said that he was unable to refrain from taking drugs whilst in custody because they were so freely available in the correctional centre he was at.

17. On 11 November 2019 New South Wales Community Corrections assessed Mr Mareiti  as being of ‘medium to high risk of reoffending’ and he was not recommended for parole at that time because it was considered that the community would be at risk. So far as Mr Mareiti was considered to be of medium to high risk, this was consistent with an earlier assessment obtained on 26 September 2018.

18. Mr Mareiti gave evidence about having four parents, four grandparents 11 brothers and sisters, 58 nieces and nephews and 79 cousins who all live In Australia. Two of his parents are step-parents because his natural parents have remarried. His biological mother is said to be in custody in Queensland having been convicted of murder. Of his 11 brothers and sisters eight of them are under the age of 18 years. Four of Mr Mareiti’s siblings, aged between eight and 12 years old, live in Queensland and are cared for by their older brother, G who is 22 years of age and their older sister, K who is 20 years of age. The other four minor siblings, aged between 12 and 16 years of age, live in Sydney with their father and Mr Mareiti’s stepmother. Mr Mareiti has no family of friends in New Zealand.

    ISSUES

19. The issues in this review are defined by the criteria for revocation of a mandatory cancellation of a visa that are found in ss.501CA(4). Subsection 501CA(4) provides:

    (4)  The Minister may revoke the original decision if:

    (a)  the person makes representations in accordance with the invitation; and

    (b)  the Minister is satisfied:

    (i)  that the person passes the character test (as defined by section 501); or

    (ii)  that there is another reason why the original decision should be revoked.

20. Subsection 501CA(4) lays down the pre-conditions that must be satisfied in order to revoke a mandatory visa cancellation: first, that the person seeking revocation has made representations under ss.501CA(4)(a) to the Minister about why the Minister should exercise the power under ss.501CA(4); and second, either that the Minister is satisfied that the person making the representations passes what is referred to in the Act as ‘the character test’ (ss.501CA(4)(b)(i)), or that the Minister is satisfied that there is ‘another reason’ why the decision should be revoked (ss.501CA(4)(b)(ii)).

21. These are the issues that need to be considered in Mr Mareiti’s case although as will be seen it is only the last of the issues that is controversial.

    APPROACH

22. The issues require the Tribunal to make the correct or preferable decision based upon the evidence and information before the Tribunal at the time it decides the matter. The Tribunal in deciding the matter stands in the Minister’s shoes. The matters about which the Minister needed to be satisfied are the matters that the Tribunal is required to be satisfied about. The use of the word ‘satisfied’ indicates that what is required to be undertaken by the Minister, and in this review the Tribunal wearing his shoes, is the making of an evaluative judgment about the relevant criterion based on the evidence and information available.

23. Subsection 499(2A) of the Act introduces another dimension to the decision-making process in this review. Subsection 499(2A) requires the Tribunal in exercising its function and powers under the Act, of which the function and power of reviewing the Minister’s decision under ss.500(1)(ba) is one, to comply with any written directions given by the Minister under ss.499(1). The Minister has given a written direction under ss.499(1) which is known as Direction No 79 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (Ministerial Direction).

24. The Tribunal is bound to comply with the terms of the Direction. The terms of the Ministerial Direction inform the Tribunals ‘satisfaction’ about the matters referred to in ss.501CA(4)(b). I will return to the requirements of the Ministerial Direction in more detail when I deal with the issue as to whether there is another reason to revoke the mandatory cancellation of the Visa, as it is there that it takes on significance in this review.

    REPRESENTATIONS

25. As I have already observed, on 3 April 2019, in response to an invitation by the Minister on 21 March 2020, Mr Mareiti made representations under ss.501CA(4)(a) to the Minister about why the Minister should exercise his discretion under ss.501CA(4) to revoke the mandatory cancellation of the Visa. The Minister conceded, and I find, that Mr Mareiti made representations in accordance with the Minister’s invitation. The requirement in ss.501CA(4)(a) is satisfied.

    THE CHARACTER TEST

26. The character test in ss.501CA(4)(a) is defined by ss.501(6)(a) which provides that a person does not pass the character test if they have a ‘substantial criminal record’. Subsection 501(7)(c) provides that a person has ‘a substantial criminal record’ if, among other things, they have been sentenced to a term of imprisonment of 12 months or more.

27. I have already referred to Mr Mareiti’s criminal conviction for robbery in company for which he was sentenced to four years imprisonment and his other sentence of 13 months for the same offence. Mr Mareiti conceded, and I find, that because each of those terms of imprisonment exceed 12 months, Mr Mareiti does not pass the character test.

    IS THERE ANOTHER REASON FOR REVOCATION?

28. The requirement in ss.501CA(4)(b)(ii) that the Minister be satisfied that ‘there is another reason why the original decision should be revoked’ is informed by the Ministerial Direction. Before applying ss.501CA(4)(b)(ii) to the circumstances in this review it is necessary to consider the requirements of the Ministerial Direction because, as I have observed, I am bound to comply with it and it informs the exercise that I am required to undertake.

    The principles

29. Clause 6.1(4) of the Ministerial Direction identifies its purpose as being ‘to guide decision-makers performing functions or exercising powers under section 501 of the Act…to revoke a mandatory visa cancellation under section 501CA of the Act’. Clause 6.2(3) of the Ministerial Direction says that the principles in the Ministerial Direction ‘provide a framework within which decision-makers should approach their task of deciding whether…to revoke a mandatory cancellation under section 501CA’ and refers to ‘relevant factors that must be considered in making a revocation decision’, which are identified in Part C of the Ministerial Direction.

30. Both the ‘principles’ and the ‘relevant factors that must be considered’ are required by the Ministerial Direction to be applied in a particular way. Clause 7(1) provides that the principles will ‘inform’ a decision-maker about the matters that must be taken into account in determining whether the mandatory cancellation of a visa will be revoked. In that way both the principles and the ‘relevant factors that must be considered’ regulate the discretion, or more accurately the satisfaction, or evaluative judgment, that a decision-maker is required to have, or make, under ss.501CA(4) before deciding whether there is ‘another reason’ to revoke a mandatory cancellation of a visa. It follows that both the ‘principles’ and the ‘relevant factors that must be considered’ are vitally important in what they provide for, and in their application to given facts, in the decision-making process.

31. Turning first to the principles, which are all found in cl.6.3. The first of them in cl.6.3(1) records the undoubted sovereign right of Australia to determine whether non-citizens of ‘character concern’ are allowed to ‘remain in Australia’. It records the fact that being in Australia is a privilege that is conferred in the expectation that non-citizens are ‘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’. This principle is about the fact that it is Australia who decides who can be in Australia, and Australia permits people to be here on the express basis that they will abide with Australian law.

32. Clause 6.3(2) refers to the expectation of the Australian community that ‘the Australian Government can and should refuse entry to non-citizens, or cancel their visa, if they commit serious crimes in Australia or elsewhere.’ This principle is reiterated later in the matters that must be considered, but it is important here that it is the ‘expectation’ of the Australian community that is relevant, and not the general proposition that those who commit serious crimes in Australia or elsewhere should be refused entry or have their visa cancelled. That comes later in the principles.

33. Clause 6.3(3) refers to ‘a non-citizen who has committed a serious crime of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to … forfeit the privilege of staying in, Australia’ [emphasis added]. This principle operates on the premise of a ‘general’ expectation or rule and not one that is either to be applied in every case, or more importantly, in specific circumstances. The invitation extended by the word ‘generally’ is that in a given set of circumstances the general will give way to the specific. The other aspect of the clause is that it operates to defeat an expectation. A non-citizen who relies upon an expectation that they may remain in Australia regardless of their conduct can be afforded no comfort at all that their expectation will be accorded any significance in the framework because of this principle. The logical extension of this is that a decision-maker should expressly act on the basis that generally there is no such expectation that can be afforded any relevance in the decision-making process.

34. The opening words in cl.6.3(4), ‘In some circumstances’ [emphasis added], are the converse of cl. 6.3(3) in that they contrast the specific with the general. The ‘some circumstances’ identified are where ‘criminal offending or other conduct…so serious that any risk of similar conduct in the future is unacceptable’, and it is ‘[i]n these circumstances’ that ‘even other strong countervailing considerations may be insufficient to justify not cancelling…the visa.’ What is important is that the principle leaves open two possibilities relevant to not cancelling a visa: namely, that where criminal offending or other conduct is not so serious, strong countervailing considerations, or even countervailing considerations alone, might justify not cancelling a visa; and that strong countervailing considerations may be, in any event, sufficient to justify not cancelling a visa. These arise because cl.6.3(4) in its terms contemplates so much by leaving the door open to such potential outcomes.

1. The meaning to be given to cl.6.3(4) is clear when cl.6.3(5) and cl.6.3(7) are considered. Clause 6.3(5) provides:

   Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

2. So far as this principle is concerned, sight should not be lost of the fact that living in the Australian community for most of their life, or from a very young age, is not at all qualified by the words ‘participating in, and contributing to’ as applies in the case with those who have only been in Australia for a short time. Although it is not expressed to be, these are likely to be amongst the ‘countervailing considerations’ that are relevant to cl. 6.3(4). It is also important that living in Australia for ‘most of their life’ or ‘from a very young age’ is not something that is to be regarded as an automatic exception to the general position of ‘low tolerance’; the word ‘may’ suggests that the issue is an open one presumably dependant on other of the principles, the relevant factors that must be taken into account, and naturally enough the circumstances of the given case.

3. Clause 6.3(6) refers to Australia’s ‘low tolerance of any criminal or other serious conduct’ such that those who hold a limited stay visa can have no expectation that they may remain here permanently. The issue here is directed to permanence more than anything else and the principle would otherwise seem to reiterate what other of the principles have already laid down.

4. Clause 6(7), like the first part of cl.6(5), provides that the ‘length of time a non-citizen has been making a positive contribution to the Australian community, and the consequence of a visa…cancellation for minor children and other immediate family members’ are considerations. The use of the conjunctive ‘and’ suggest that positive contribution is not relevant to the issue of consequences for minor children and family members, so that so far as consequences for minor children and family members are to be considered, time itself is immaterial. Again, these are likely to be amongst the countervailing considerations that are referred to earlier in the principles.

5. None of the principles found in cl.6.3 are dominant or more important than the others, perhaps if only because none of them are stated to be such. They should be read harmoniously. It is true that applying the principles to the various matters that need to be considered in the decision-making process requires emphasis to be given to one or other of them. So far as possible all the principles should be given effect. So much can be seen from the consideration I have given to the expectations of the Australian community that is dealt with later in these reasons.

   The primary and other considerations

6. The Ministerial Direction requires that the principles inform the decision maker’s consideration of the matters referred to in Part C. Part C contains what are known as ‘primary considerations’ and ‘other considerations.’

7. Clause 8(3) provides that both classes of considerations may weigh in favour of or against whether to revoke the mandatory cancellation of a visa. Clause 8(4) provides that that primary considerations should ‘generally be given greater weight than other considerations’ [emphasis added]. The use of the word ‘generally’ suggests that there can be circumstances in which that is not the case. The inquiry is ‘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.”[1] That raises a question about what ‘the circumstances that generally apply’ are. That issue as to when special consideration should be given to a factor or other factors is left to the good sense of the decision-maker. The question does not arise in this matter so I need not consider it further.

   [1] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]

8. Clause 13(2) identifies the primary considerations as:

   (a)protection of the Australian community from criminal or other serious conduct (cl.13.1);

   (b)the best interests of minor children in Australia (cl.13.2); and

   (c)expectations of the Australian community (cl.13.3).

9. Clause 14(1) requires that ‘other considerations where relevant’ must be considered. These include, noting that the class of other considerations is not closed:

   (a)international non-refoulment obligations (cl.14.1);

   (b)strength, nature and duration of ties (cl.14.2);

   (c)impact upon Australia business interests (cl.14.3);

   (d)impact on victims (cl.14.4); and

   (e)the extent of impediments if a non-citizen is removed from Australia (cl.14.5).

10. I note in passing that the other considerations that are relevant here are: Australia’s international non-refoulment obligations, including the fear of harm if returned to New Zealand; the strength nature and duration of ties; and the extent of impediments of removed. There are no other considerations that appear to be relevant.

11. It is necessary to consider each of these considerations, informed by the principles that I have referred to earlier. It is convenient to record, consider and deal with each of the primary and other considerations in turn.

    Protection of the Australian community

12. Clause 13.1(1) directs attention to ‘the principle that the Government is committed to protecting the Australia community from harm as a result of criminal activity or other serious conduct by non-citizens’ and to the principle contained in cl.6.3(1) which I have referred to earlier. Clause 13.1(2) requires consideration of the nature and seriousness of the conduct to date, and the risk to the Australian  community should further offences or others serious conduct be engaged in.

13. Clause 13.1.1 provides for a list of factors that I am required to consider in assessing the nature and seriousness of the offence, although the use of the word ‘including’ in the introduction to the sub-paragraphs suggests I may consider other matters. The phrase ‘nature and seriousness of the offence’ and many of the factors referred to in the list, are redolent of the kinds of things that are routinely considered by sentencing judges when dealing with sentences for criminal offences.  

14. Amongst the sub-paragraphs, the matters that are of importance in this case are: ‘the principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously’ (cl.13.1.1(1)(a)); ‘the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed’ (cl.13.1.1(1)(b)); ‘the principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled)…are serious’ (cl.13.1.1(1)(c); ‘the sentence imposed by the Court for a crime or crimes’ (cl.13.1.1(1)(d)); ‘the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness’ (cl.13.1.1(1)(e)); and ‘the cumulative effect of repeated offending’ (cl.13.1.1(1)(f)).

15. I have referred to these matters in terms because it is important to understand the context in which I am considering the various matters that arise in the circumstances here. To the extent that I have not referred to the other matters in cl.13.1.1  it is because they are not relevant, but their absence does not add to or detract from the objective seriousness of the offending. To the extent that I have referred to other matters it is because they are relevant to the assessment of the nature and seriousness of the offence. All the things I refer to inform the evaluation of the nature and seriousness of Mr Mareiti’s offending.

16. Mr Mareiti’s criminal conduct involves two offences which are very serious, they are the offences of robbery in company. Both of them involved violence to people. The seriousness of those offences is aggravated by the fact that one of them was undertaken with one other person and, the other with at least three others. Both offences involved violence against vulnerable people, in one case children and in the other an elderly man. The first was committed when two teenage boys were put in fear of an assault if they did not hand over their wrist watches. The second involved actual physical violence with Mr Mareiti striking Mr S to the head causing him to fall to the ground and, once he was on the ground, repeatedly punching and kicking him. His injuries were serious involving extensive swelling and bruising to his face. His injuries could have been much worse based upon the description of what happened. The circumstances of the latter offence make it a particularly serious offence.

17. The sentence imposed on 18 January 2019, four years imprisonment, reflects the fact that the matter was a serious one. The earlier offence was treated less seriously, but seriously enough to involve a sentence of 13 months imprisonment. The seriousness of both offences is underscored by the fact the maximum penalty prescribed by s.97 of the Crimes Act 1900 (NSW) for them is 20 years imprisonment. This reflects that the community considers that such offences are very serious.

18. The other offences committed by Mr Mareiti were less serious. None of them involved violence to people. In general, they involved stealing or were the kinds of offences associated with steps preparatory to or after stealing. The offences committed on 16 March 2017 were more serious because the involved the commission of very many offences of stealing and attempted stealing on the same day. They attracted terms of imprisonment although the terms were only for one month. Not much of the detail of those offences is disclosed by the evidence. It does not matter a great deal because the existence of the early offences, the many offences committed on 16 March 2017, and the most serious offence committed on 26 May 2017, suggests that both the frequency and seriousness of  Mareiti’s offending was, at the time he was detained in custody, trending upwards. It is also important in terms of the factors that I am directed to take into account, that the cumulative effect of Mr Mareiti’s offending by the time that he came to be sentenced on 18 January 2019 was such that they, in a general way, rendered his offending more serious.

19. Another factor, not expressly identified in the Ministerial Direction, that I consider to be relevant to the nature and seriousness of Mr Mareiti’s criminal offending, is the fact that his most recent offence was committed whilst he was on bail for earlier offences and, in particular, he was on bail for the earlier offence of robbery in company. That fact was considered in the sentence that was imposed so it is important not to overstate it or ‘double up’ on it, but it does, when exposed, give something of a different and more serious complexion to the offending. Having been caught doing the wrong thing and waiting to be dealt with Mr Mareiti offended again. Being caught was, it seems, no deterrent.

20. I find that the nature and seriousness of Mr Mareiti’s conduct to date is at a high level of seriousness having regard to the matters I have referred to above.

21. In dealing with the risk to the Australian  community should further offences or other serious conduct be engaged in, I am required to have regard to, ‘cumulatively’: ‘the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct’ (cl.13.1.2(1)(a)); and ‘the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending’ (cl.13.1.2(1)(b)).

22. The harm caused by Mr Mareiti’s conduct falls into two broad categories. First, there is the physical or psychological harm that has been caused to the victims of his offences of violence, the fear instilled in the two teenage boys and the extensive bruising and swelling occasioned to Mr S. There is no evidence of any ongoing harm to either of the two teenage boys. There was no permanent harm to Mr S, but that is not to diminish the significance of the injuries he suffered. Any injury is a serious matter. It is important that given that he was struck to the head, fell to the ground, and was punched and kicked whilst defenceless and laying on the ground, things could have turned out far worse. Second, there is the financial harm associated with stealing, although in the case of the latter not a great deal is known about what harm may have been caused by some of the offences that involved stealing alone. In my view the harm to individuals should Mr Mareiti reoffend would be much the same or worse.

23. The second issue concerns the risk of Mr Mareiti engaging in further criminal conduct based upon the available information and evidence on the risk of his reoffending.

24. Mr Mareiti expressed remorse for the offences he committed including the most serious and recent offence of robbery in company, but the extent of his remorse is an issue. In relation to that offence Mr Mareiti did not accept either when sentenced, or in his evidence before the Tribunal, that he had struck the victim causing him to fall to the ground or that he had punched and kicked the victim whilst he was on the ground. This was contrary to express findings that were made when he was sentenced. The sentencing remarks reflect that by the time he came to be sentenced Mr Mareiti acknowledged his involvement in the offence, but in the context of an evidentiary contest about the extent of his involvement which was resolved against him. Mr Mareiti maintained that his involvement in the offence was because he did not go to the victim’s aid and that he ‘watched it happen’.

25. The offence for which he was convicted and sentenced was one in which he was a principal offender who had struck the victim to the head, caused him to fall to the ground and then punched and kicked him while he was on the ground. Mr Mareiti’s lack of understanding about the findings during sentencing and their significance may do nothing other than reveal a lack of grasp on Mr Mareiti’s part as to the process of sentencing, the importance of Judge O’Brien’s findings on sentencing, the notion of criminal responsibility and, most probably, a failure by anyone to explain to him what the effect of these aspects of sentencing were.  Also, the difference between his account and that found by Judge O’Brien might lay in the observation that ‘[g]iven the quantity of alcohol and cannabis that he had consumed on the evening it is far from surprising that his recollection of the actual events does not accurately coincide with that of other witnesses.’

26. The findings made during sentencing are at odds with Mr Mareiti’s version of events both then and now. I am not prepared for the reasons I have given to find that that reflects adversely upon Mr Mareiti so far as remorse is concerned.

27. I accept that Mr Mareiti is somewhat remorseful for his actions and, in particular, the effect it had on Mr S. His evidence when sentenced was the subject of comment by Judge O’Brien that ‘(t)he only time when he displayed any emotion was when he discussed the victim and the likely effect of his conduct had on him. Indeed, the offender became tearful as he gave his evidence. He described himself as embarrassed and ashamed of his conduct and said that no person deserves to be robbed in the way that Mr S was robbed. I found this evidence to be heartfelt and accept that the offender has a degree of remorse’. Mr Mareiti said something similar in an interview in November 2019 when his pre-release report was prepared. He expressed remorse for his actions in his evidence before the Tribunal.

28. I also accept that he is sorry for his part in the harm he caused to his victims including the teenage boys who were the victims of his earlier robbery in company offence. I have said that I accept that Mr Mareiti is ‘somewhat’ remorseful because although the weight of evidence and his demeanour in giving evidence favours a finding of remorse, that evidence is lessened by Mr Mareiti’s different account that he gave in his representations to the Minister where he said he had attempted to  ‘stop what was happening’ on the evening of 26 May 2017. Likewise, in the pre-release report prepared by Mr Devoy on 11 November 2019 it says that Mr Mareiti continued to assert that he was not ‘the perpetrator of the offence.’ Although it is not entirely clear what in fact Mr Mareiti did say to Mr Devoy, that statement is inconsistent with a complete acceptance of responsibility for the offence. It cannot be said or found that he is completely remorseful for his actions.

29. So far as Mr Mareiti’s offending is concerned it is obvious that his history of offending has a relationship to his use of cannabis, and perhaps other drugs, and his consumption of alcohol. The nature of his offences and his limited income discloses a need on his part to access sufficient funds to support his habit.  Mr Mareiti admitted that he had a problem with marijuana and alcohol at least at the time of his offending. He admitted that he continued to take drugs whilst in custody, but the last time he did so was in December 2019. The evidence discloses that at least until 11 November 2019 Mr Mareiti was returning positive urine tests in relation to illicit drugs. He said when asked about this prior to his release that the reason for this is that drugs were freely available at the correctional centre where he was staying. As I have referred to earlier, Mr Mareiti completed several courses while he was in custody. One of those courses was the Intensive Drug and Alcohol Treatment Program which was designed to assist him in dealing with his drug addiction. I simply do not know whether having participated and completed that course will assist Mr Mareiti or not in relation to his drug and alcohol habit.

30. There was nothing that was much convincing about Mr Mareiti’s evidence that things would change for him and his drug and alcohol problem once he was released. It is not possible to express any view one way or the other as to whether or not Mr Mareiti’s drug and alcohol dependency exists today. It would seem that if Mr Mareiti relapsed in custody because drugs were freely available, it is unlikely to be much different for him when he re-enters the mainstream community where cannabis and alcohol are likely to be even more freely available than they are in a correctional centre. I think these matters are a little equivocal as to whether Mr Mareiti will reoffend, but the lack of any persuasive evidence that would enable a finding that Mr Mareiti has been rehabilitated so far as his drug habit is concerned, suggests there is a real likelihood that he will offend again

31. Next, the most contemporaneous professional opinion about Mr Mareiti’s likelihood of re-offending is set out in the pre-release report of 11 November 2019 which says that Mr Mareiti’s has been assessed at ‘a Medium High risk of reoffending according to the Level of Service Inventory – Revised’. That finding was consistent with the finding made in the presentence report that was prepared before Mr Mareiti was sentenced on 18 January 2019. The pre-release report prepared about 10 months later on 11 November 2019, did not recommend Mr Mareiti’s release on parole. These opinions suggest that at least so far, any professional opinion available indicates that at the time of the reports, there was a real prospect that Mr Mareiti would reoffend if released into the community. The report of 11 November 2019 is the most recent professional opinion available, and although it is a little dated it is not so old as not to be accorded any significance at all.

1. Whilst I accept Mr Mareiti’s evidence that it is his intention not to make what he described as ‘dumb’ decisions or to associate with the wrong people or to continue to drink to excess of partake in drugs, I am unable to act on his stated intention alone. I accept that his heartfelt desire is to live a life free from drugs and alcohol and most importantly crime free, but in the end, the pattern disclosed by Mr Mareiti’s criminal record and the lack of any comfort that I can have that he has overcome his cannabis and alcohol habit, persuade me to the view that there is a reasonable risk that Mr Mareiti will engage in further criminal conduct when he is released.

2. For these reasons I consider the nature and seriousness of Mr Mareiti’s criminal offences to be very serious and that there is a real risk of harm to the Australia community posed by the prospect that Mr Mareiti is reasonably likely to reoffend.

3. The next question is what weight should be accorded to this consideration. In according it weight, it is necessary to have regard to the principles that inform the evaluation I am required to undertake. At the forefront of that evaluation is the fact that those who commit serious crimes of violence against young and elderly people can have no expectation of remaining in Australia.  I do not consider that any of Mr Mareiti’s crimes fall into the category of ones where any risk of repetition is unacceptable both because by the very nature of the offences, they do not fall into the very most serious types of offences, and also because of the remorse expressed by Mr Mareiti and the prospect, albeit vague and a little remote, that he may in fact have overcome his cannabis and alcohol habits. There is too the greater tolerance that is to be afforded to Mr Mareiti because he has lived in Australia for ‘most of his life’ and from ‘a very young age’ together with the fact that all of his immediate, and apparently extended, family live in Australia, There are also some other countervailing considerations, notably his ‘dysfunctional and violent’ upbringing and the fact that he has suffered ‘significant disadvantage’. In my opinion those factors moderate the weight that should be given to this factor such that it weighs fairly in favour of non-revocation of the mandatory cancellation of the Visa. It is not a factor that should be treated as having either slight or heavy weight in the process of evaluation, albeit it is one that weighs in favour of non-revocation of the mandatory cancellation of the Visa.

   Best interests of minor children in Australia affected by the decision  

4. Next, I am required to consider the best interests of children in Australia who may be affected by the decision to either revoke or not revoke the mandatory cancellation of the Visa. Clause 13.2(2) requires that I only consider minor children, that is children under the age of 18 years, when I make my decision. Clause 13.2(3) requires that I consider the interests of any such children individually to the extent that their interests may differ.

5. It is important to stress that this consideration does not at all focus on Mr Mareiti’s interests such as in him having a relationship with his brothers and sisters, but rather directs attention to the best interests of the children. As will be seen, the lack of any evidence or probative  information from anyone capable of casting light on the best interests of the minor children relevant in this matter, leads me to conclude that this factor is not a factor of any great weight in my consideration.

6. Again, like with cl.13.1.1(1), cl.13.2(4) requires that in considering the best interests of minor children I consider a list of factors. Those factors which are relevant here are: ‘the nature and duration of the relationship between the child and the non-citizen’ noting that ‘less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact’ (cl.13.2.(4)(a)); ‘the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18…’ (cl.13.2(4)(b)); ‘the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child’ (cl.13.2(4)(c)); ‘the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways’ (cl.13.2(4)(d)); ‘whether there are other persons who already fulfil a parental role in relation to the child’ (cl.13.2(4)(e)); and ‘any known views of the child (with those views being given due weight in accordance with the age and maturity of the child’ (cl.13.2(4)(f)).

7. I have reproduced these factors so that the observations I make below can be understood in their context. The ones I have reproduced are the ones that have relevance.

8. The minor children are those of Mr Mareiti’s brothers and sisters who have not yet turned 18 years of age. I have already observed that four of Mr Mareiti’s minor siblings live in Queensland and are cared for by their older brother G and their older sister K. The remaining four of Mr Mareiti’s minor siblings all live in Sydney with their father and Mr Mareiti’s stepmother.

9. There is not a great deal of evidence about any of the matters relevant to this consideration. I will deal with the matters about which there is some evidence. First, the relationship is that is relevant here is that of siblings and, self-evidently,  is non-parental. Second, so far as the children in Sydney are concerned Mr Mareiti lived with them until he went into custody on 27 May 2017. He said he maintained contact with them whilst in custody by phone, text and Facebook so the duration of his relationship with them is for all of their entire lives so far, albeit since 27 May 2017 contact with them has not been in person. There is no evidence about the nature or closeness of any relationship other than that it is of brother and sibling. Third, so far as there has been contact with the minor children in Queensland it has been by telephone, text, or Facebook. Fourth, it would be possible for Mr Mareiti to remain in contact with all his brothers and sisters by telephone, text and Facebook should he be required to return to New Zealand. Fifth, although none of Mr Mareiti’s brothers or sisters visited him whilst he was in custody, he said those in Sydney visited him when he was in detention at Villawood Immigration Detention Centre (Villawood) before he was moved to Yongah Hill Immigration Detention Centre. Sixth, the children in Queensland are looked after by his older brother and sister and those in Sydney are looked after by his father and stepmother. Mr Mareiti has no concerns for the welfare of any of his brothers and sisters. Seventh, I have no evidence about the views of any of the children themselves or in relation to their wishes. Eighth, I have no evidence from the children’s parents or guardians that would cast any light on matters relevant to their welfare that might be affected by revoking the mandatory cancelation of the Visa or not. Finally, not revoking the mandatory cancellation of the Visa will mean Mr Mareiti will still be able to remain in contact with them by phone text and Facebook, but they and he will not be able to have the kind of usual relationship that siblings have with their brother if he is living in New Zealand.

10. There is no evidence about any impact, negative or positive, that Mr Mareiti’s past conduct has had on any of his brothers and sisters. There is no evidence about whether he would have a positive role to play in the children’s life in the future.

11. In the absence of evidence from the minor children or their carers or guardians it is not possible to make any meaningful findings about their best interests Given the lack of evidence concerning the children I intend to treat this consideration as one that only very slightly weighs in favour of revocation of the mandatory cancellation of the Visa because each of the children have had some limited relationship with Mr Mareiti which has extended over time.

    Expectations of the Australian community

12. The third primary consideration is that found in cl.13.3 of the Ministerial Direction which says

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere it may be appropriate  to not revoke the mandatory visa cancellation of such a person. 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 hold a visa. Decision-makers should have due regard to the Governments views in this respect.

13. The effect of this primary consideration is that it imputes to the Australian community the expectation that that those who have permission to remain in Australia will obey Australian laws. The question to be dealt with does not involve some excursion into a consideration of what or what not the Australian community expects because that is normatively expressed in the terms of the consideration itself, namely the expectation that those who have permission to remain in Australia obey Australian law. Rather, the relevant inquiry is ‘whether it is appropriate to give more or less weight to a deemed 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.’[2] And of course it may be possible that the consideration does not have any work to do at all because this case is in the class of case where it is not appropriate to ascribe any, or any significant weight, to the normative position. The answer to this is informed by the circumstances and the principles to which I have referred to earlier.

    [2] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [77] (per Charlesworth J)

14. The Minister pointed to the principles in cls. 6.3(2), 6.3(3) and 6.3(4) as being such that this consideration should ‘weigh heavily’ in favour of cancellation. I observed earlier that it is not, in my view, appropriate to give some of the principles effect over others of them in circumstances where they can be read or applied harmoniously. The principles referred to by the Minister are certainly relevant to the weight to be accorded to this consideration, but I do not agree they weigh heavily in favour of cancellation. For one thing, I do not consider that this is a case where cl.6.3(4) is engaged because the offending is so serious that ‘any risk of similar conduct in the future is unacceptable’. Even if it were, the ‘countervailing circumstances’ referred to in cl.6.3(5) (having ‘lived  in the Australian community for most of their life, or from a very young age’) and in cl.6.3(7) (‘the consequences…of a visa cancellation for minor children or other immediate family members’) moderate against ‘heavy weight’ being accorded to this consideration.

15. The view I take of these matters leads to a conclusion that the expectation of the Australian community in this case weighs in favour of non-revocation, and although weighty falls short of the kind of weight the Minister suggested should be placed on it. In the main this is because Mr Mareiti has spent most of his life from a very young age in the Australian community and because his entire immediate family including all his brothers and sisters live in Australia. The decision not to revoke the mandatory cancellation of the Visa will have an undoubted consequence for them even though that consequence on the evidence and information before me is indeterminate. Those things are circumstances which fall squarely within cls.6.3(5) and 6.3(7) such that the expectation of the Australian community should be moderated. The expectations of the Australian community should be accorded some weight because the other principles remain relevant, in particular cl.6.3(2) which reiterates the expectation of the community, and cl.6.3(3) concerning the fact that non-citizens who commit serious crimes should generally expect to forfeit the privilege of remaining in Australia. This consideration weighs appreciably in favour of non-revocation, but I do not consider it weighs as heavily as the Minister submitted. 

    Australia’s international non-refoulment obligations

16. Clause 14.1 of the Ministerial Direction requires consideration of Australia’s international treaty obligations not to return a person to a place where they will be at risk of harm, as well as Mr Mareiti’s fears of harm should he be returned to New Zealand.

17. Mr Mareiti expressed his fears if returned to New Zealand in two substantial ways: the first dealt with the prospect that he would be homeless, without any financial or emotional support and without any support from family (and friends); the second was by reference to ‘the new high levels of outlaw motor cycle groups now formed in New Zealand’ and ‘turf wars between Pacific Islander Communities’. He referred extensively to the existence of ‘youth gangs’ as being a source of fear of harm to him in the material he filed and adopted in his evidence, but his evidence was at odds with this in that it seemed, even though he later denied this, his real ‘fear’ was that he would be forced to join such a gang.

18. I reject the suggestion that there would be any risk of specific harm to Mr Mareiti if he were forcibly returned to New Zealand. The evidence about these matters was both speculative and vague, especially so far as ‘gangs’ and ‘turf wars’ were concerned. I do not think the fears Mr Mareiti claimed to have had were reasonably based and even less sincerely held. Those matters were not  mentioned in Mr Mareiti’s representations to the Minister such that they have something of a flavour of invention about them.

19. The Minister tendered substantial material about New Zealand that puts to bed once for all any suggestion that any of Mr Mareiti’s concerns are reasonably based. New Zealand has much in common with Australia. New  Zealand is an advanced social democracy. It has sophisticated well-developed social welfare and legal systems that are on any reasonable view at least on par with those in Australia. The people of New Zealand are a peace-loving people. English is the predominantly spoken language. Christianity is the dominant religion. There is no doubt that emotionally and financially things will be difficult for Mr Mareiti, on his return to New Zealand, being in a country that he has not ever lived in. That difficulty is not the harm to which non-refoulement obligations are directed. I do not consider that this factor has any relevance to this matter. It certainly does not weigh in favour of revocation of the mandatory cancellation of the Visa.

    Strength, nature and duration of ties

20. Clause 14.2 of the Ministerial Direction requires that attention be paid to the strength, nature and duration of ties in Australia.

21. Clause 14.2(1)(a) requires to me address the issue of how long Mr Mareiti’s has resided in Australia, giving ‘less weight’ where the offending started ‘soon after’ arrival in Australia (cl.14.2(1)(a)(i)) and ‘more weight’ where ‘time has been spent positively contributing to the Australia community’ (cl.14.2(1)(a)(ii)).

22. Mr Mareiti has been in Australia for about 22 years. His offending started long after he arrived in Australia. There is no evidence that Mr Mareiti has made any contribution to the Australian community. It follows, that there are no deductions or additions to the weight to be otherwise given to this consideration.

23. Clause 14.2(1)(b) requires consideration of the strength, nature and duration of any familial and social links with people in Australia who are entitled to remain in Australia as citizens or permanent residents, and the effect of non-revocation on immediate family members who are citizens, permanent residents or people who have a right to be in Australia indefinitely.

24. Mr Mareiti gave evidence about having four parents, two grandparents, 11 brothers and sisters, 58 nieces and nephews and 79 cousins in Australia (and no remaining relatives in New Zealand). There was nothing to support his claim in that respect, but I am prepared to  at least accept that he has the immediate family he claimed to have and an extended family something like the number that he claimed. There was no evidence about the citizenship, residency or visa status of Mr Mareiti’s family, but again I am prepared to accept that at least his immediate family, and probably most of his extended family, have a right to be in Australia either as citizens, permanent residents or visa holders on an indefinite visa.

25. There is no direct evidence about the effect non-revocation would have on his family. No family member gave any evidence or provided any information about the effect revocation would have on them. There was some evidence, in Judge O’Brien’s sentencing remarks, that Mr Mareiti had, at least in January 2019, lost all links with his family. This is to be seen against the fact that he said, and I find, that he spoke to his brothers and sisters and had contact by text, telephone or Facebook every day and that some of them had visited him when he was in detention at Villawood. None of his immediate family visited him whilst he was in custody.

26. The evidence does not allow any satisfactory finding to be made about the effect on any family members, whether they be immediate family members or extended family members. Non-revocation will certainly have some impact upon them, but I am unable to determine anything more than that. This is especially so given that in New Zealand he will still be able to maintain contact with them in the way that he has been most familiar with in recent times, namely by text, telephone and Facebook.

27. The only evidence about any social ties or links that Mr Mareiti had with anyone other than his family related to Ms Tiara Hoy who provided an email about her relationship with Mr Mareiti which she described as ‘close with the possible chance of commitment’ once Mr Mareiti was released. Mr Mareiti described Ms Hoy as his ‘girlfriend’. He said he had known Ms Hoy since he was 12 years of age. He said she became his girlfriend in the last six months or so. He said it was his intention to continue the relationship even if he was returned to New Zealand.  Ms Hoy did not visit Mr Mareiti whilst he was in custody or since he been in detention. There was no evidence given by Ms Hoy about the effect on her should the mandatory cancellation of the Visa not be revoked. Like with his immediate family it is not possible to say what impact non-revocation would have on Ms Hoy, especially where Mr Mareiti’s intends to continue his relationship with her even if he is returned to New Zealand

28. In view of the fact that Mr Mareiti arrived in Australia and has been in Australia for all of his life other than its first 15 months, and the lack of any other factors detracting or adding to that consideration, I regard this consideration as one that weighs in favour of revocation of the mandatory cancellation of the Visa, albeit only slightly so given the lack of evidence from family about the effect on family members and others of non-revocation.

    The extent of impediments if removed

29. Clause 14.5 requires me to consider the extent of any impediments that may exist for a non-citizen if removed from Australia and returned to their home country, in establishing and maintaining a basic living standard. I am required to consider age, health, language and cultural barriers and social, medical and economic support that may be available.

30. Mr Mareiti is 23 years of age. He did not appear to have any medical condition. The suggestions in the material that he suffered from Asperger’s syndrome or brain damage was not supported by any evidence, medical or otherwise. His appearance was of a healthy young man. I accept he is of limited intellectual ability. He had obtained qualifications whilst in custody such as a forklift licence and a workplace health and safety qualification. He speaks English which is the predominant language spoken in New Zealand. From the material tendered by the Minister, it is plain that New Zealand is a country remarkably like Australia in terms of its social welfare, medical, legal, and economic system. No doubt adjusting to life in New Zealand will present difficulties to Mr Mareiti, but I do not consider that there are any impediments to him establishing and maintaining a basic standard of living in New Zealand. I accept that he does not have any family or friends in New Zealand. This will create some difficulty for him in adjusting to life in New Zealand, but I doubt given his time in custody and his apparent lack of social ties in Australia more generally,  that the impediments to him re-establishing life after custody will be significant. This is, like consideration of his ties with Australia, a factor that I think for these reasons weighs slightly in favour of revocation of the mandatory cancellation of the Visa.

    CONCLUSION

1. I have found that the protection of the Australian community is a consideration that significantly but not strongly weighs in favour of the non-revocation of the mandatory cancellation of the Visa as does protection to the Australian community. These considerations which might otherwise have weighed heavily in the decision-making process are both moderated by consideration of Mr Mareiti’s length of time in Australia, the fact that he has been in Australia from a very young age, and the fact that his entire family lives in Australia. I have found that the interests of Mr Mareiti’s brothers and sisters who are not yet 18 years of age weighs only slightly in favour of revocation of the mandatory cancellation of the Visa.

2. As to the other considerations I have found that Australia’s non-refoulement obligations and Mr Mareiti’s fears of harm neither weigh in in favour or against revocation of the mandatory cancellation of the Visa. I have found that the strength, nature and duration of Mr Mareiti’s ties and the impediments if Mr Mareiti is removed to New Zealand both slightly weigh in favour of revocation of the mandatory cancellation of the Visa. These are not considerations which in the circumstances of this matter can outweigh the primary considerations that weigh against revocation of the mandatory cancellation of the Visa.

3. It follows from my findings that the weight I have ascribed to the primary considerations outweighs the other considerations such that I am unable to find that there is another reason why the mandatory cancellation of the Visa should be revoked.

4. I affirm the decision refusing to revoke the mandatory cancellation of Mr Mareiti’s Class TY Subclass 444 Special Category (Temporary) Visa issued to him on 20 October 1998.

I certify that the preceding 99 (ninety-nine) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

....................[sgd]....................................................

Associate

Dated: 10 July 2020

Date(s) of hearing:	29 and 30 June 2020
Date final submissions received:	2 July 2020
Applicant:	By videoconference
Solicitors for the Respondent:	Ms M Perotti, Sparke Helmore