Martin and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2022] AATA 3722

Martin and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 3722 (4 November 2022)
Division:GENERAL DIVISION
File Number: 2022/7175
Re:Jodi Ben Tautoko Martin
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Mrs J C Kelly, Senior Member
Date:4 November 2022
Place:Sydney

The reviewable decision made on 23 August 2022 not to revoke the cancellation decision is set aside and in substitution it is decided that there is another reason why the decision to cancel the applicant’s visa should be revoked pursuant to section 501CA(4)(b)(ii) of the Migration Act 1958.
............................[sgd]..........................................
Mrs J C Kelly, Senior Member
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – sentenced to a term of imprisonment for 12 months or more – whether there is another reason to revoke mandatory cancellation of applicant’s visa – Ministerial Direction No. 90 – primary considerations – protection of the Australian community – nature and seriousness of the applicant’s conduct – offences committed in Australia and New Zealand – risk to the Australian community – family violence – best interests of minor children – expectations of the Australian community – other considerations – extent of impediments if removed – links to the Australian community – decision set aside and substituted
Legislation
Migration Act 1958
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Secondary Materials
Direction no. 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
4 November 2022
Introduction

The Applicant, Mr Martin, is a 35 year-old New Zealand citizen. He has lived permanently in Australia since September 2019. He held a Class TY Subclass 444 Special Category (Temporary) visa (the visa) from 2011 until it was cancelled on 15 October 2021 because he had been sentenced to a term of imprisonment of 12 months or more and was serving a sentence of imprisonment. That was the consequence of subsection 501(3A)(a)(i) and (b) of the Migration Act 1958 (the Act).
The Applicant applied to have the cancellation revoked and has followed the appropriate procedures under the Act. On 23 August 2022, it was decided not to revoke the cancellation decision.
He then applied to the Tribunal for review of that decision.
Issues
It is not disputed that the Applicant does not pass ‘the character test’ under section 501(6)(a) and section 501(7)(c) of the Act because he has been sentenced to a term of imprisonment of 12 months or more.
The only issue is whether there is another reason why the mandatory cancellation decision should be revoked pursuant to section 501CA(4)(b)(ii) of the Act, having regard to Direction no. 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90).
Direction 90
The Preamble in Part 1 of Direction 90 sets out Objectives, including the purpose of the Direction, and the Principles which provide the framework within which decision-makers should approach their task in exercising powers under section 501CA of the Act. Part 2 of Direction 90 is about exercising the discretion. It sets out primary and other considerations and the factors to be considered in each case.
The principles that provide the framework for decision-makers are set out in paragraph 5.2 of Direction 90:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian government can and should refuse entry to non-citizens, or cancel the visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 7 of Direction 90 gives directions about taking the relevant considerations into account:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Each consideration raised by the evidence will be addressed in turn.
Primary considerations
Protection of the Australian community
The first primary consideration is protection of the Australian community from criminal or other serious conduct. Paragraph 8.1(1) of Direction 90 states:
1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction 90 requires a decision-maker to have regard to two matters when considering the protection of the Australian community:
(a)The nature and seriousness of the Applicant’s conduct; and
(b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct
Paragraph 8.1.1 of Direction 90 sets out the matters to which regard must be had when considering the nature and seriousness of the non-citizen’s criminal offending. Before addressing those matters, I summarise the Applicant’s criminal offending.
Offences committed in Australia
The Applicant had been in a relationship in New Zealand, but it was not working out for him. He returned to Australia. To the Applicant’s surprise, his partner decided to move to Australia. He stated that he was caught off guard but went along with it. In retrospect, he can see that the relationship was toxic, and it is better that they are not together.
The Applicant committed his most serious offences in Australia, against his then partner, on 24 November 2020.
Consequently, an Apprehended Domestic Violence Order (ADVO) was issued on 2 December 2020 naming the Applicant as the defendant and the victim as the person in need of protection. A Final order was made in court on 22 December 2020 for a two-year period.
On 6 April 2021, the Applicant was convicted of two Assault occasioning actual bodily harm offences and a Stalk/intimidate intend fear physical/mental harm (domestic)-T2 offences as a result of the 24 November 2020 incident.
The sentencing magistrate said that the attack on the victim was sustained, and that the Applicant assaulted vulnerable parts of her body and threw a knife at her, causing a laceration to her arm.
The sentencing magistrate found that the charges and the offending conduct was of sufficient seriousness to require a custodial sentence. She said that having no prior criminal history was saving him from going into custody. She gave him a 25% discount for pleading guilty at an early stage which indicated that he was prepared to accept responsibility for the offences. She accepted that the victim threw schooner glasses at the Applicant which was considered provocation but did not excuse his behaviour.
The sentencing magistrate assessed the Assault occasioning actual bodily harm offences as falling at the high end of the midrange of seriousness for that type of offence, and the intimidation offence at the low end of the high range of seriousness, given the sustained nature of the attack.
The Applicant had successfully completed the ‘MERIT’ (Magistrates Early Referral Into Treatment) Program, to which he had been referred on 9 December 2020. The sentencing magistrate commented:
I have read the final report and it is a very, very positive report. It seems that you have taken very genuine and honest steps to look at your behaviour and to change your behaviour going forward.
The Applicant told the magistrate that his counsellor had given him tips to maintain (sic) his anger and any triggers, and that the strategies he was employing were: taking more time to himself, being more respectful towards others, watching what he said, and thinking about how people will react to what he says. He said that he was going to live with his parents who were supportive. He was going to talk to his employer about wanting to do more courses like anger management. He said his work roster made it difficult for him to arrange time to do courses because it changed daily. He also told the magistrate that his relationship with the victim had ended.
The sentencing magistrate found that he had good prospects of rehabilitation. She sentenced the Applicant to an overall term of imprisonment of 20 months from 6 April 2021 to expire on 5 December 2022, to be served by way of intensive correction order (ICO). The conditions of the ICO were abstinence from illicit substances and attending ongoing counselling in relation to drug abuse and anger management issues. She specified the sentences forming part of the overall term of imprisonment (that is, the indicative terms) were intimidation 14 months, and 12 months for each of the assault occasioning actual bodily harm offences.
It is the sentence to imprisonment for 20 months which resulted in the mandatory cancellation of the visa under the Act.
On 22 June 2021 the Applicant received a Community Corrections Order (CCO) for 12 months (22/06/2021 to 21/06/2022) supervised by the Community Corrections Service for Contravene prohibition/restriction in AVO (Domestic) (Contravene AVO) which had occurred on 13 June 2021. A neighbour had called the police after hearing a male and female yelling. The Applicant admitted to police in an electronically recorded interview that he had been residing at the victim’s address for a month in breach of a condition of the order.
The Applicant was back before the court on 20 July 2021 for Contravene AVO on 13 July 2021 to which he pleaded guilty. He and his former partner were arguing, and a neighbour called the police. The Applicant fled. The sentencing magistrate said that the Applicant fled because he knew he was not supposed to be there because he was on a CCO for an identical offence committed a month earlier (the 13 June 2021 offence).
His legal representative told the court the Applicant said that the relationship was over. The Applicant had spent a week in custody before the court appearance. It was his first time in custody.
There was also a ‘call up’ of the 13 June 2021 offence.
The sentencing magistrate found that both offences fell within the broad midrange of seriousness of such offences. They were aggravated by the fact that he was on two different forms of conditional liberty (ICO and CCO). He found that there were poor prospects of rehabilitating and not reoffending because of the repeat nature of the offending.
In respect of the call up of the Contravene AVO, the CCO was revoked, and the Applicant was sentenced to a term of imprisonment of two months commencing 13 July 2021 and concluding on 12 September 2021.
In respect of the Contravene AVO that occurred on 13 July 2021, a 25% discount was given for pleading guilty, he was convicted, and sentenced to a term of imprisonment of three months commencing on 13 August 2021 and concluding 12 November 2021.
The sentencing magistrate commented that the Applicant would be eligible to go back on his ICO on 12 November 2021. However, as a result of the convictions dealt with on 20 July 2021, the ICO was revoked on 27 July 2021 with effect from 13 July 2021 because he had breached the condition of the ICO not to commit any offences.
The Applicant appealed the 20 July 2021 orders to the District Court. On 16 August 2021, the appeal was dismissed, and the orders made in the Local Court on 20 July 2021 were confirmed.
Offences committed in New Zealand
The Applicant committed his most serious offence in New Zealand on 14 March 2013. On 8 November 2013, he was convicted of Male Assaults Female (Manually) (Family Violence) and sentenced to 100 hours of Community Work (SA) /Supervision (SA) – 1 year, Special Conditions.
Subsequently, he was convicted of two breaches of Community Work committed in February and May 2014. He was discharged for the first, and fined and ordered to pay court costs for the second.
On 7 July 2006 he committed the offences: Obstruct/Hinder Police and Resist Police. On 23 August 2006 he was convicted and sentenced in each case ‘To come up for sentence if called upon – 1 year’. The offences were not called up.
He was convicted of a ‘Breath Alcohol’ offence in 2006 and 2008, fined, ordered to pay court costs and disqualified from driving for three and nine months respectively. He was convicted of ‘drove while disqualified’ in 2006, fined, ordered to pay court costs, and disqualified from driving for 6 months.
Application of Direction 90
The 24 November 2020 offences that arose from the assault on the Applicant’s partner are acts of family violence as defined in Direction 90, and are viewed very seriously by the Australian Government and the Australian community.[1]
[1] Direction 90, paragraph 8.1.1(1)(a)(iii).
The Applicant’s offending in New Zealand on 14 March 2013, for which he was convicted on 8 November 2013, was his first family violence offence and a similar view is taken.
Paragraph 8.1.1(1)(c) of Direction 90 requires that the sentence imposed by the courts be considered except, relevantly, acts of family violence. (Emphasis added). A term of imprisonment is the last resort in the hierarchy of sentencing and reflects the objective seriousness of the offence.[2]
[2] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
The two ‘Contravene AVO’ offences involved the Applicant being in the presence of his partner in breach of the ADVO. He was not charged with any other offences for those incidents. However, because the Applicant was sentenced to terms of imprisonment for both, after breaching the CCO he had received for the first, I regard those offences as serious.
The Applicant offended against his former partner on three occasions from November 2020 to July 2021. He had committed a family violence offence against another partner in 2013. There was not a trend of increasing seriousness. It was repeated offending. The first Contravene AVO offence was while he was subject to the ICO and the second while he was also subject to the CCO. The Applicant has demonstrated repeated disregard for the law on those occasions and also in 2014 when he breached the Community Work requirement imposed on sentence for the 2013 family violence offence.
The Applicant ticked ‘No’ in answer to the question ‘Do you have any criminal convictions?’ on incoming passenger cards on 2011, 2015 and 2019. I accept the Applicant’s explanation that when he answered those questions, he thought a conviction meant going to gaol. He is not well-educated and until 2021 had not been exposed to the legal system to a significant extent. I draw no adverse inference from the answers he gave.
Apart from the family violence offence committed in New Zealand in 2013 and the consequential breaches of the sentence imposed, I give negligible weight to the offences the Applicant committed in New Zealand in 2006 and 2008 when he was relatively young. They were minor offences and have not been repeated. I have come to that conclusion bearing in mind that the offences Obstruct/Hinder Police and Resist Police are considered serious by the Australian Government and the Australian community.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Government’s view is that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases, and some conduct and the consequential harm, if repeated, is so serious that any risk that it may be repeated is unacceptable.[3]
[3] Direction 90, Paragraph 8.1.2(1).
I do not agree with the Respondent that this is a case where any risk of re-offending is unacceptable. This matter is concerned with the seriousness of the potential harm if the conduct is repeated. No-one called the police to the incident on 24 November 2020, including the witness who later gave a statement. Rather, the witness was able to step in and separate the parties. The victim was not hospitalised. There is no evidence that she required medical attention. The victim reported the matter to police on 1 December 2020. She was highly emotional and disclosed her fears of the accused while giving a ‘Domestic Violence Evidence in Chief’. Police took photographs which were in evidence. Police observed several bruises and lacerations to her arms and facial area.
When considering the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the first consideration is the nature of the harm to individuals or to the Australian community should the Applicant engage in further criminal conduct.[4]
[4] Direction 90, Paragraph 8.1.2(2)(a).
If the Applicant reoffends, individuals may suffer physical harm and emotional harm.
Paragraph 8.1.2(2)(b) of Direction 90 requires consideration of various matters to assess the likelihood that the Applicant will reoffend.
The Applicant has a long history of drinking and drug taking. He told the Tribunal that he stopped smoking cannabis in 2014 but resumed when he came to Australia. He has no drug offences. He continued to use cannabis and drink after he arrived in Australia. His only alcohol-related offences were in New Zealand in 2006 and 2008.

He completed nine individual counselling sessions during the MERIT program which concluded on 31 March 2021. The program was directed to drug and alcohol use. At the beginning of the program, he had described his current problematic drug use as exclusively cannabis. The Applicant had generally been abstinent from cannabis during the program. He had been given tips about managing his anger and he developed some strategies.
Subsequently, he committed the ‘two Contravene AVO’ offences after he had finished the program.
He says that he is ashamed and embarrassed by his criminal record and acknowledged that his actions leading to his last conviction were wrong. He claimed that he lacked the tools and skills to deal with those situations. He claims that he does not drink anymore because of the recent onset of his heart condition and does not want to because it caused too many problems. He claimed that he did not smoke cannabis anymore.
He claims to have changed and referred to the courses he has done since being in immigration detention:
·Drug and Alcohol Abuse 101 (17 February 2022) 7 hours
·Domestic Violence 101 (17 February 2022) 8 hours
·Anger Management 101 (18 February 2022) 5 hours
·Healthy Relationships (19 February 2022) 7 hours
·Emotional Healing 101 (22 February 2022) 6 hours
·Positive Parenting Techniques (22 February 2022) 5 hours
·Depression Management (22 February 2022) 5 hours
The Applicant has spent a total of 43 hours doing those courses. That is a substantial commitment of time across a range of courses which are relevant to his rehabilitation. One of the courses was drug and alcohol abuse. Doing that course is consistent with the interest he expressed at the end of the MERIT program in continuing counselling to address his substance use.
He completed Working Safely A guide to Safe Working Practise Training while in prison.
The Applicant’s former partner has tried to email and call him since he has been in immigration detention, but he has not responded because he does not want to remain friends with her. That conduct reflects a degree of insight on the Applicant’s part.
In its Statement of Facts, Issues and Contentions, the Respondent referred to an incident since the Applicant has been in detention where he was reported to be in possession of contraband of which he denied ownership. I was unable to locate such a report in the documents. He was not cross-examined about it. I draw no adverse inferences from the available information.
The extent to which the Applicant has been rehabilitated has not been tested in the community. He plans to live with his parents, go back to work with the assistance of his best friend, and see his general practitioner to get a referral to a drug and alcohol counsellor and a heart specialist.
I accept that the Applicant has had a big ‘wakeup call’ for the following reasons.
He has been imprisoned for the first time from 13 July 2021 to 12 November 2021. He then went into immigration detention and faces the loss of the visa which would prevent him from living in Australia or visiting his large extended family in Australia to whom he is very close. He would earn less in New Zealand. The principal reason he came here was to earn more money. He provides financial support to both of his biological children in New Zealand and assists family members in Australia financially when they need it. The mother of his son who lives in New Zealand mentioned that he can earn more money in Australia as a reason for wanting him to stay here.
After feeling unwell for about a month, at the end of May 2022, after a visit from his mother, he had chest pains and went to get medical help. He was taken by ambulance from detention to the emergency department of a hospital. He vaguely remembers being ‘shocked’ by the medical team using electrical pads. He underwent a series of tests and scans. He was discharged from hospital after five days with a medical treatment plan and medication.
The Applicant was visibly very distressed when talking about this incident and his condition, which is the same as that suffered by his mother for many years. He is a relatively young man who earns his income from labouring work. I infer that the prospect of ill-health diminishing his capacity to work worries him deeply. His mother does not work because of her health issues.
The consideration, protection of the Australian community, weighs against revoking the visa cancellation decision.
Family violence
Paragraph 8.2(1) states that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. and the concerns are proportionate to the seriousness of the family violence engaged in.
The Applicant conceded that this consideration weighs against revocation. That is undeniable.
The Applicant has committed three family violence offences in Australia and one in New Zealand, against two different partners. His other offences in Australia were breaches of the AVO that was imposed as a consequence of the family violence offence.
The sentencing magistrate assessed the occasioning actual bodily harm offences as falling at the high end of the midrange of seriousness for such an offence and the intimidation offence as falling at the low end of the high range of seriousness, given the sustained nature of the attack.
Given the length of time between the offending in Australia and New Zealand, I do not consider that there is a trend of increasing seriousness. The offences in Australia are more serious than the offence in New Zealand.
The Applicant unreservedly accepts responsibility for the offending and has demonstrated some understanding of the impact on the victim. He has undertaken courses in domestic violence, anger management and healthy relationships to address the factors contributing to his conduct.
The Respondent referred to paragraph 5.2(5) of Direction 90. It is appropriate to address that paragraph in relation to the consideration, Expectations of the Australian community.
Best interests of minor children in Australia
Paragraph 8.3 of Direction 90 addresses the best interests of minor children in Australia affected by the decision.
In relation to this consideration, the Applicant listed eight of his 22 nephews and nieces, and a godson to whom he is closest, who live in Australia and are under 18 years of age. Seven of his nieces and nephews are seven year of age or under. One is seven, two are six, one is four, one is two, and two are one. His godson is 15 years of age.
Fifteen of the Applicant’s nieces and nephews live in Australia and seven live in New Zealand.
It is relevant that the Applicant visited Australia for the first time in 2011 for less than two weeks in November, returned in December and stayed until the end of May 2012, and visited again for ten days in 2015, before arriving in September 2019. His parents and siblings arrived in Australia in 2014. His relationship with each of the children has to be understood in that context, taking into account the age of the child.
The nephew to whom he is closest is 10 years old. This nephew lives with and is cared for by the Applicant’s mother and stepfather because his mother abandoned him, and his father is in another relationship. He was named after the Applicant. Given the child’s age, I infer that the close relationship has developed since the Applicant arrived in 2019. I accept that they have a special bond and as his grandmother stated, the Applicant plays a parental role to the child. That is understandable given that the child has been abandoned by his parents and the Applicant is old enough to be his father. The Applicant helps to pay for the child’s schooling, uniform, haircuts, and spending money to go to the movies and go on outings. That is consistent with playing a parental role. They speak regularly while the Applicant is in detention. They can continue to do so if the Applicant returns to New Zealand. The Applicant could continue to help support his nephew if he returned to New Zealand but to a lesser extent than if he remained and worked in Australia. However, given the child’s age and circumstances, it is very important that the Applicant remain in Australia to continue his parental role in the child’s life.
The Applicant plays an active ‘uncle’ role to his other nieces and nephews but not a parental role. He visits their families, and they meet at family gatherings. I infer that this is a role that has developed since he arrived in September 2019. If the Applicant returned to New Zealand, he could communicate electronically with his nieces and nephews, to the extent they are able to do so considering their ages.
The Applicant does not play a parental role in the life of his 15-year-old godson, whose father has lived in Australia for 14 years. He has been the Applicant’s friend for over 20 years and provided written and oral evidence. I accept that the Applicant plays a ‘friend’ role in the life of the child. The godson’s mother provided a statement describing the relationship the Applicant has with the child, her and her husband. I infer that the relationship between the Applicant and his godson has developed since September 2019.
Revocation would be in the best interests of each of the relevant children. Greatest weight is given to the best interests of the Applicant’s 10-year-old nephew to whom he plays a parental role. Less weight is given to the best interests of each of the other nephews and nieces, and least weight is given to the best interests of the 15-year-old godson because it is only three years until he turns 18.
Expectations of the Australian Community
The fourth primary consideration is expectations of the Australian Community. Paragraph 8.4 of Direction 90 provides that the Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Direction 90 further states 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 person should not hold a visa.
The Full Court of the Federal Court of Australia considered clause 11.3 of Direction 65, which is analogous to paragraph 8.4 of Direction 90, in FYBR v Minister for Home Affairs [2019] FCAFC 185. The majority (Charlesworth and Stewart JJ) concluded that clause 11.3 (and by extension paragraph 8.4) contains a statement of the government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or the evidence about those expectations.
Australia may afford a higher level of tolerance to criminal conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age.[5] That does not apply to the Applicant.
[5] Direction 90, paragraph 5.2(4).
The question for the decision-maker is the weight to be attached to this consideration.
The applicant has breached the trust of the Australian community.
In accordance with Direction 90, paragraph 8.4(2)(a), the Australian community expects that the Australian Government should cancel the applicant’s visa because of his acts of family violence.
Those expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The consideration, expectations of the Australian community, weighs against revocation.
Other considerations
The relevant other considerations in this case are the extent of impediments if removed from Australia and the strength, nature and duration of ties to Australia element of consideration links to the Australian community.
Extent of impediments if removed
Direction 90, paragraph 9.2, requires a decision-maker to consider the extent of impediments that may be faced if the person is removed from Australia to their home country, in establishing themselves and maintaining basic living standards, in the context of what is generally available to other citizens of that country, and sets out matters relevant to that consideration.
The Applicant has two biological children in New Zealand aged 14 and 10 who he supports financially. Two of his brothers live in New Zealand. One is planning to move to Australia with his family. He does not have regular contact with another brother who lives ‘remotely’. He has some other family members in New Zealand, including cousins who he claims are heavy drug and alcohol users. He believes that he is likely to revert to drug and alcohol use if he returns. He has no place to stay in New Zealand.
He would not have the strong family support network that he has in Australia if he returned to New Zealand. That is particularly significant because of the recent onset of his heart condition.
It is accepted that New Zealand offers access to health care and social services similar to what is offered in Australia. The Applicant’s mother said that she received good medical care when she was unwell while visiting New Zealand.
This consideration favours revocation.
Links to the Australian community
The consideration links to the Australian community has two limbs.[6]
(i)strength, nature, and duration of ties to Australia.
(ii)impact on Australian business interests.
[6] Direction 90, paragraph 9.4.
Only the first limb is relevant in this case.
The applicant has been in Australia for three years since arriving in 2019. He was also in Australia for about six months from December 2011 to May 2012. He has been in prison or detention for 15 months. He arrived aged 32. His offending began less than a year after he arrived.
The Applicant has contributed positively to the Australian community through the various jobs he has had during his two extended periods in the country.
It was not suggested that any of the people I refer to in relation to this consideration was not an Australian citizen, an Australian permanent resident or a person who has a right to remain in Australia indefinitely.
The Applicant’s mother, step-father and seven of his siblings and their 15 children are in Australia. They are a very close family. The letters of support, statements of support and oral evidence of his mother and one of his sisters attest to that.
If the Applicant returns to New Zealand, he will be able to communicate with friends and family in Australia by electronic means.
Cancellation of the Applicant’s visa will adversely affect each of his parents, his siblings and nieces and nephews. His sister told the Tribunal that she and her family could not afford to visit the Applicant in New Zealand.
However, his mother will be the one who suffers the most. She will be heart-broken if his visa is cancelled. Not only will he return to New Zealand, but he will not be able to visit her and the family. She said that she cannot afford to visit New Zealand. She has been troubled by heart problems since she was young. She has had a pacemaker fitted and takes medication. She is very concerned about his health. She will not be able to provide care for him. He will not be able to provide the same emotional support to her.
The Applicant provides financial support to various family members, but in particular to his 10-year-old nephew, and his parents. He can earn more if he remains in Australia.
The Applicant’s best friend, his wife and their son will also be adversely impacted by the cancellation of the visa.
This consideration weighs very heavily in favour of revocation.
Conclusion
I have to weigh all “primary” and “other” considerations set out in Direction 90. “Other considerations” should not be necessarily given less weight in all cases; it is a case-by-case consideration.[7]
[7] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]; Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947; Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875.
The primary considerations protection of the Australian community, family violence and the expectations of the Australian community weigh in favour of not revoking the decision to cancel the visa.
The primary consideration best interests of minor children and other considerations, extent of impediments if removed and links to the Australian community, weigh in favour of revoking the decision to cancel the visa.
On balance, I consider that the considerations favouring revocation outweigh those against.
There is another reason why the decision to cancel the applicant’s visa should be revoked pursuant to section 501CA(4)(b)(ii) of the Act.
Decision
The reviewable decision made on 23 August 2022 not to revoke the cancellation decision is set aside and in substitution it is decided that there is another reason why the decision to cancel the applicant’s visa should be revoked pursuant to section 501CA(4)(b)(ii) of the Act.

I certify that the preceding 110 (one hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

...........................[sgd].......................................
Associate
Dated: 4 November 2022

Date of hearing:

Applicant:

Solicitor for Applicant:

Solicitor for Respondent:

25 October 2022

In person

Ms M Mamarot, Southwest Migration and Legal Services

Mr C Bavin, Hunt & Hunt Lawyers