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

[2023] AATA 3772

Matangi and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3772 (25 October 2023)

Division:GENERAL DIVISION

File Number(s):      2023/5648

Re:Fonua Matangi

APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:              Mr S Evans, Member

Date of Decision:                   25 October 2023

Date of written reasons:         17 November 2023  

Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal decides that the decision under review, being the decision of a delegate of the Minister dated 1 August 2023 not to revoke the mandatory cancellation of Mr Matangi’s Class TY Subclass 444 Special Category (Temporary) visa, is affirmed.

...............[Sgd].........................................................

Mr S Evans, Member 

Catchwords

MIGRATION – visa cancellation under subsection 501(3A) of the Migration Act 1958 (Cth) – cancellation not revoked under subsection 501CA(4) – where the applicant has a substantial criminal record – where the applicant does not pass the character test – issue: is there another reason why the visa cancellation should be revoked - best interests of minor children - family violence – impediments to removal –where the Applicant suffers from a mental illness that contributed to offending – where mental illness exacerbated by drug use – Direction no. 99 considered – reviewable decision affirmed.

Legislation

Migration Act 1958 (Cth)

Cases

FYBR and Minister for Home Affairs [2019] FCAFC 185
Suleiman and Minister for Immigration, and Border Protection [2018] FCA 594

Secondary Materials

Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

17 November 2023

INTRODUCTION

1. The applicant, Fonua Matangi, seeks review of a decision of delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent) dated 1 August 2023 not to revoke the mandatory cancellation of his Special Category (Temporary) (Class TY) Subclass 444 visa (the visa) pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act).

2. Mr Matangi was born in New Zealand in April 2001 and is a citizen of that country. He arrived in Australia on 6 September 2006.  

3. On 12 October 2022 Mr Matangi’s visa was cancelled under subsection 501(3A) of the Act because he had a ‘substantial criminal record’ on the basis of having been sentenced to a term of imprisonment of 12 months or more and was serving a sentence of imprisonment on a full-time basis in Shortland Correctional Centre for an offence against a law of the Commonwealth, a State or a Territory.

4. On 9 November 2022 Mr Matangi made representations to have the cancellation decision revoked under section 501CA of the Act. For the reasons that follow, the reviewable decision not to revoke the mandatory cancellation of Mr Matangi’s visa was affirmed on 25 October 2023.

   ISSUE TO BE DETERMINED

5. The issue for the Tribunal to consider is whether to revoke the original decision to cancel Mr Matangi’s visa pursuant to subsection 501CA(4) of the Act.

6. Subparagraph 501CA(4)(b) of the Act provides that the Tribunal may revoke the original decision if it is satisfied:

   (a)that the applicant passes the character test; or

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

7. Mr Matangi was convicted by the District Court of NSW at Downing Centre on 24 June 2022 of Robbery armed with an offensive weapon-SI for which he was sentenced to an aggregate term of imprisonment of three years and District Court of NSW in October 2020. As such, I am satisfied that he has a ‘substantial criminal record’ and does not pass the character test by operation of paragraphs 501(6)(a) and 501(7) of the Act.

8. As Mr Matangi does not pass the character test, the sole issue for determination is whether the Tribunal can be satisfied that there is another reason why the mandatory cancellation of the visa should be revoked.

   RELEVANT LAW AND MINISTERIAL DIRECTION

9. Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.

10. Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6)(a) and 501(7)(c).

11. Paragraph 501(6)(a) provides that a person does not pass the character test if they have a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.

12. The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:

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

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

    (b) the Minister is satisfied:

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

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

13. Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.

14. The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 99).

15. Paragraph 5.2 of Direction 99 provides overarching principles which I have considered when reviewing Mr Matangi’s application. It relevantly provides:

    (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    (5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    (6) 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 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

16. Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation of a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more primary consideration may outweigh other primary considerations. However, other considerations should not be considered ‘secondary’ or of inherently less importance than primary considerations, and in certain circumstances one or more other considerations may outweigh primary considerations.[1]

    [1] Suleiman and Minister for Immigration, and Border Protection [2018] FCA 594, [23] per Colvin J

17. The primary considerations in the Direction are:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)family violence committed by the non-citizen;

    (3)strength, nature and duration of ties of the non-citizen to Australia;

    (4)best interests of minor children in Australia affected by the decision; and

    (5)expectations of the Australian community.

18. The other considerations set out in Direction 99 which must be taken into account where relevant include but are not limited to:

    a)legal consequences of the decision;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)impact on Australian business interests.

    EVIDENCE

19. Mr Matangi gave oral evidence at the hearing and I found him to be a credible witness who sought to answer questions put to him honestly. 

20. In his original request for revocation of the cancellation decision Mr Matangi provided a statement in which he expressed his remorse for his offending which he attributes in large part to his mental health condition.[2]

    [2] G16/94-96

21. After completing his year 12 schooling he relocated from Queensland to Sydney to play football. His football career was advancing. However, he began drinking ‘a lot’ of alcohol and ‘smoking cannabis.’ He writes:

    I then got kick out due to started a fight with another team mate which all started from me [being] paranoid and that’s when my mental illness all started in 2020 december I was diagnosed and sent to Cumberland Hospital. My illness was [schizophrenia] and [Psychosis].

    …

    Very remorseful for my action. Reoffending will not happen again since having my kids have been happier and feel safe and being a good non-citizen in the community.

    I also state that my mother passed away in July 2022 whilst I was in custody so if sending me back to [New Zealand] that would play a big part of my mental health I would never get to see her ever again.

    [errors in original]

22. In a report dated 8 June 2022 forensic psychiatrist Dr Richard Furst sets out Mr Matangi’s personal history and the onset of his mental health condition: 

    Mr Matangi was born in Auckland, as were his siblings. His father…was born in Tonga. His mother is of mixed Tongan and Maori heritage. His family migrated to Australia and lived in Brisbane between 2005 and 2019.

    Mr Matangi completed his primary school and high school education in Queensland whilst living in Brisbane. There were no indications of specific learning difficulties or ADHD. He played rugby league at school, including competitive football. He completed Year 12.

    Mr Matangi's father worked in the building/ construction industry and his mother stayed at home. Mr Matangi worked in the building industry himself in the period after his family moved to Sydney, i.e. in 2019…

    He has a history of apparent psychotic symptoms, Mr Matangi reporting that he 'heard voices' after he stopped working with his father in his construction industry, which was in the latter months of 2019. He also felt paranoid around that time believing that people were talking about him and that songs and other content on the radio were about him [apparent delusions of reference].

    His mother .. also indicated that she saw changes in [Mr Matangi’s] behaviour in the latter months of 2019. She stated [Mr Matangi] was staying up all night and was sleeping during the day. She also stated he believed their neighbours were 'laughing at him' and that he was paranoid in· the latter months of 2019.

    Mr Matangi was admitted to Cumberland Hospital for approximately two months in December 2019-January 2020, or thereabouts, for treatment of his psychotic illness. The nature of his symptoms and the length of that admission suggesting the most likely diagnosis is schizophrenia.

    Mr Matangi’s criminal offending and other conduct

    Mr Matangi’s criminal history is set out in a National Criminal Check Report dated 2 May 2023.[3] April 2021 conviction

    [3] G6/32-36

23. On 22 April 2021, Mr Matangi was convicted by the NSW Local Court of attempt stalk/intimidate intend fear of harm (personal) – T2, use etc offensive weapon w/I to commit indictable offense – T1, affray and failure to appear and was sentenced to a 2 year Community Corrections Order and ordered to attend and comply with the treatment and referral directions of the Bankstown Mental Health Service.[4]

    [4] G6/35-26

24. The circumstances of the offending are set out in a NSW Police Facts Sheet.[5]  On 2 September 2020, Mr Matangi threatened and lunged at a co-worker with a large knife at his workplace.[6] Mr Matangi was subsequently arrested and told police he had brought the knife work ‘in case someone annoyed me and I would have to use it’. He added that he believed the co-worker’s behaviour towards him was racist, and his intention was to ‘hurt and cut’ his co-worker.[7]

    [5] G10/68-70

    [6] G10/69

    [7] G10/70

    November 2020 and April 2021 Robbery offences

25. On 24 June 2022 Mr Matangi was convicted in the NSW District Court for offences including assault with intent to rob armed with offensive weapon – SI, robbery armed with offensive weapon – SI and common assault for which he was sentenced to an aggregate of 3 years imprisonment with a non-parole period of 18 months.[8]The sentence related to separate robbery offences in which Mr Matangi was armed with a weapon. On 21 November 2020 Mr Matangi entered a bottle shop, approached the checkout desk and removed a claw hammer and made a throwing motion at the attendant. He was confronted by other customers and fled the premises. He returned to the bottle shop on 22 November and made another attempt to rob the store armed with a 30-centimetre kitchen knife.

    [8] G6/35

26. On 19 April 2021 Mr Matangi entered a BWS bottle shop carrying a knife that he had taken from his kitchen. The details of the offence are set out in the judgement of Scotting DCJ:   

    The offender then walked back into the cool room and immediately came back out wielding the knife in his left hand. He pointed the knife towards a BWS employee, [redacted], who was positioned behind the cash register. Whilst he was wielding the knife, the offender was about a metre away from [the employee]. The offender then pointed the knife towards the cash register and

    demanded “open the cash register” repeatedly until [the employee] did so.

    …

    Around the same time …, a customer, walked out of the cool room carrying a box of alcoholic beverages. Whilst still wielding the knife in his left hand, the offender used his right hand to push [the customer’s] right shoulder in the direction of the driveway and told him to stand in front of the counter.

    The offender returned to the open cash register and began to grab cash from the till. He took approximately $510. The offender then fled the premises on foot. While running, he abandoned the knife in an undisclosed road.

    April 2022 assault of law enforcement officers

27. On 30 June 2022 Mr Matangi was convicted on two counts of assault law enforcement officer (not police) inflict actual bodily harm -T1 and was sentenced to aggregate imprisonment of 18 months with a non-parole period of 9 months. Mr Matangi subsequently appealed, but the appeal was withdrawn and the conviction affirmed on 27 October 2022.[9]

    [9] G6/33-34

28. This offence occurred on 15 April 2022 while Mr Matangi was in custody pending trial.[10] The Police Facts Sheet records Mr Matangi was being escorted back to his cell through the common area and as he approached the stairs he punched one of the victims twice in the face with a closed left and right fist before punching him 3 to 4 times more. Mr Matangi then approached the other officer and punched him once in the face with a closed left hand causing him to fall backwards and briefly lose consciousness.[11]  

    The sentencing transcript records that Mr Matangi had been in placed in a safe cell which he was not allowed to leave. He had been provided his medication previously but did not receive his medication immediately prior to the incident. It was submitted that prior to be removed from the cell, he had been stripped of his clothes, ‘was paranoid’ and ‘hearing voices’.[12] 

    [10] G8/44

    [11] ST2/64

    [12] G8/46

    June 2020 assault occasioning actual bodily harm

29. On 24 January 2023 Mr Matangi was convicted by the NSW Local Court of assault occasioning actual bodily harm – T2, use etc offensive weapon w/i to commit indictable offence – T1, and two counts of destroy and damage property <=$2,000 – T2 and was sentenced to 9 months imprisonment with a non-parole period of 5 months.[13]The convictions followed an incident on 28 June 2020 where Mr Matangi was refused entry to a hotel and returned later with a claw hammer which he swung toward the victim on multiple occasions, hitting him once. He then used the claw hammer to smash the glass door of the hotel, and upon leave damaged the glass panels of a nearby bus stop.[14]

    [13] G6/33

    [14] G11/73-76

    Incidents in custody and detention

30. An immigration detention incident report dated 28 June 2023 records that Mr Matangi attempted to punch another detainee but did not make physical contact because the other detainee moved backwards.[15] When asked about the incident Mr Matangi said he and the other detainee had been getting along but that he had attempted to hit the other detainee because detainees ‘are equal’ and the other detainee  acted ‘like he was king’.  The detention centre record notes that the other detainee had attempted to enter Mr Matangi’s room without an invitation. 

    [15] ST7/254

31. A NSW Department of Corrective Services report records that Mr Matangi was observed fighting with another inmate on 4 December 2022. Mr Matangi explained the incident followed an argument over a banana which escalated.[16].

    [16] ST4/128

32. A separate Corrective Services report dated 12 April 2022 records Mr Matangi ‘was extremely elevated, highly aggressive and abusive’ towards staff and ‘was making shotgun gesture and threatening the staff to kill who so ever [sic] comes in.’[17] Mr Matangi gave evidence he was not taking his medication at this time.

    [17] ST4/108

33. A Corrective Services report dated 30 October 2021 details an incident in which Mr Matangi and another inmate were seen pushing and punching each other. Both inmates were covered in blood and required medical attention.[18] At the hearing Mr Matangi stated that the issue was caused by other inmates bullying and picking on him. He explained that he did not like the way he was being spoken to and he needed to defend himself after being punched.

    Primary consideration 1 – Protection of the Australian community from criminal or other serious conduct

    [18] ST4/107

34. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, Direction 99 requires decision-makers to have regard to:

    a)the nature and seriousness of the non-citizen’s conduct to date; and

    b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    The nature and seriousness of the applicant’s conduct to date

1. In considering the nature and seriousness of Mr Matangi’s conduct I am required to have regard to the factors set out in paragraph 8.1.1(1) of the Direction. I have set out Mr Matangi’s offending earlier in these reasons.

2. Mr Matangi’s offending includes crimes of a violent nature and his offences have involved use of weapons including knives and a claw hammer.  Mr Matangi has been sentenced to multiple terms of imprisonment with the longest sentence being three years. His offending has been frequent and he has been convicted of a total of eleven offences over two years.  

3. Overall, I consider Mr Matangi’s offending to be very serious.

   The risk to the Australian community

4. Subparagraph 8.1.2(1) of Direction 99 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases. Subparagraph 8.1.2(2) provides that in assessing the risk posed by a non-citizen to the Australian community, I should consider, cumulatively: 

   (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending. 

   The nature of future harm

5. There is a risk of serious harm to individuals in the community should Mr Matangi reoffend in a similar nature to his previous offending, which has included use of weapons and assault offences. Such offending has the potential to cause physical, mental and psychological harm to members of the Australian community. 

   The likelihood of Mr Matangi engaging in further criminal or other serious conduct

6. In a written submission Mr Matangi stated that his offending is related to his unstable mental health and notes that he has been diagnosed with ‘schizophrenia, anxiety and paranoia’. He also states that he has engaged ‘problematic alcohol consumption’ to address his mental health.[19]

   [19] G17/106

7. Mr Matangi gave evidence he had been using cannabis regularly since high school. He would take cocaine when he could and used illicit drugs more frequently as time went on. He would also drink alcohol if it was available.

8. When asked about the relationship between his substance abuse and offending, Mr Matangi said that when he does not take his prescribed anti-psychotic medication, he craves alcohol and becomes bored. He also begins to hear voices and his desire for drugs and alcohol increases. He knows that the drugs and alcohol will not ‘take the voices away’, but he is convinced in that moment that taking drugs or alcohol will provide relief.  

9. Regarding his compliance with anti-psychotic medications, Mr Matangi stated he has had periods of being consistently and appropriately medicated, notably when his mother was making him take the medication. He said that it is not in his nature to rise quickly to anger and he knows that he will ‘lose himself’ if he does not take the medication. Nonetheless, he said he was often in a cycle of taking his medication, feeling better and stopping taking his medication when he felt better. 

10. When asked about the robbery offences he did not dispute the facts explained that at the time of the offending he was not taking his medication consistently. He had been out of work due to his deteriorating mental health and spent much of his time at home. He began hearing voices which he thought were real. The voices told him to do something because he was broke. He said he went to the bottle shop armed with the hammer because he was sick.

11. Regarding the June 2022 conviction for assaulting law enforcement officers, Mr Matangi stated that he was sick at the time of the offence and in the midst of ‘the worst ever experience’. He was convinced that one officer was trying to threaten and kill him. He said he did not assault the officers because he was ‘trying to show off’, but because he was sick. He explained that in the weeks prior to the offence, he was not being provided his medication which made him feel paranoid.

12. Regarding the offending which occurred in June 2020, Mr Matangi could not recall the incident but stated he was very sick at the time. Asked why he had a hammer in his backpack he explained he was intoxicated and that it was not a conscious decision.

13. In his report forensic psychiatrist Dr Richard Furst sets out Mr Matangi’s psychiatric history and assesses his risk of reoffending. He states that Mr Matangi is schizophrenic and has a substance used disorder. He identifies a ‘primary causal connection between Mr Matangi’s drinking, schizophrenic illness and offending conduct’.  In the report, written in preparation for sentencing for the robbery offences,  Dr Furst also states that:

    Although it would appear likely that Mr Matangi's offending was not driven by psychotic symptoms, i.e. his offending was not likely to have been driven by either delusions or hallucinations, it is likely that his schizophrenic illness was poorly controlled at the time of the offending in November 2020 and in April 2021 and that the presence of his schizophrenia a relevant mitigating factor.

    Specifically, people with schizophrenia, especially when the illness is poorly controlled, often struggle to think clearly, struggle to make good decisions and often have difficulty with judgement and consequential thinking. Furthermore, people with schizophrenia are more inclined to drink and/or use drugs such as cannabis as a maladaptive means of coping with unpleasant psychotic symptoms and/or associated unpleasant mood states.

14. Regarding the robbery offences, Dr Faust opines that Mr Matangi would have been ‘aware of his offending actions and the wrongfulness of his actions at the time of his offending’. He considers that Mr Matangi is likely to remain functionally impaired by his schizophrenic illness, but that treatment would likely improve his mental health and decrease his risk of reoffending. He notes that the risk of offending associated with psychotic illness returns to rates very similar to those people in the community who do not suffer from psychotic illness when their psychotic illnesses are adequately treated and controlled.[20]

    [20] ST2/47

15. Regarding the robbery offences, Dr Faust opines that Mr Matangi would have been ‘aware of his offending actions and the wrongfulness of his actions at the time of his offending’.[21]

    [21] ST2/46

16. In a report dated 22 December 2022 consultant psychiatrist Dr Tim Watson-Munro states that Mr Matangi appeared to have a ‘Depressive Disorder (moderate & recurring)’[22] and concurs with Dr Faust’s diagnosis of Schizophrenia and Substance Use Disorder.

    [22] ST3/81

17. On 30 August 2023 while being held in immigration detention Mr Matangi returned a urinalysis result which was positive for Amphetamines, Benzodiazepines, Methamphetamine and Cannabis. He was subsequently hospitalised.[23]He remained in hospital from 1 to 4 September 2023 and was diagnosed having had a drug-induced psychosis. An IHMS psychiatrist writes that following his discharge from hospital, Mr Matangi’s mental state had continued to improve such that by 21 September 2023 he was ‘symptom free’ and had ‘the capacity to attend his upcoming AAT hearing’.[24]

    [23] ST6/149

    [24] ST6/252

    Protection of the Australian community – conclusion

18. Mr Matangi’s offending and other conduct is very serious owing to the nature of the offending, the frequency of the offending and the trend of increasing seriousness. Mr Matangi has been diagnosed with schizophrenia and having a substance abuse disorder Based on the evidence, most notably his own, Mr Matangi’s mental health improves when he complies with his medication and his drug and alcohol issues are managed. Based on the evidence, it is unclear the degree to which Mr Matangi is remorseful for his offending, but I note the observation in a Sentencing Assessment report dated 10 June 2022 that he ‘appeared to minimise the severity of his offences’.[25] It is particularly concerning that Mr Matangi is aware of what steps he might take to improve his mental health and appreciates the harm that he has caused to others, but has given little indication he intends to take positive measures which might address this risk and continues to use illicit substances. 

    [25] ST2/38

19. In sentencing Mr Matangi on 24 June 2022 His Honour Judge Scotting observed Mr Matangi was ‘still young’ and expressed confidence that he could rehabilitate himself. However, Mr Matangi concedes he continues to be non-compliant with his medication and the evidence is that he has continued to abuse substances.

20. Most recently his drug use led to Mr Matangi experiencing a drug induced psychosis while he was being held in immigration detention. Based on the evidence I accept the Respondent’s contention that Mr Matangi’s drug use and dependency is directly related to the risk of him reoffending. His continued substance abuse and failure to maintain medication compliance leads me to conclude he is at very high risk of reoffending.

    Primary consideration 2 - Family violence committed by the non-citizen

21. The second primary consideration is whether the conduct engaged in by Mr Matangi constituted family violence. Family violence is defined in Section 4 of Direction 99 to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Paragraph 8.2(3) of the Direction sets out a list of factors that the Tribunal must consider in assessing the weight to be given to this consideration. They relevantly include the frequency of the conduct, the cumulative effect of repeated acts of family violence and the rehabilitation achieved since the person’s last known act of family violence. 

22. Mr Matangi has not been convicted of any offences which involved family violence. However, following the incident which occurred on 14 March 2022, Mr Matangi was charged with a breach of bail offence which was later withdrawn. The details of that offence are set out in NSW Police Facts Sheet and Mr Matangi agrees the details set out are accurate.[26] 

    [26] ST2/57-58

23. The police facts detail how Mr Matangi and his partner, RM, were arguing at home. The argument escalated and Mr Matangi punched the bedroom wall several times. RM locked herself in the bathroom and made several attempts to cut herself with a kitchen knife causing superficial cuts to her arm. Mr Matangi entered the bathroom to find the knife and the two began arguing again. He slapped RM across the face multiple times. Mr Matangi followed her outside the toilet and began to punch her in the face multiple times with his right hand and closed fist. He told RM ‘I fucking hate you, just you wait I’m not done with you’.[27] 

    [27] ST2/57

24. The argument resumed and he repeatedly punched RM in the face again causing her lip to split and nose to bleed profusely.[28] Mr Matangi conceded that his partner was holding their son during the incident. 

    [28] ST2/58

25. I am satisfied that the conduct described in the police facts is accurate and constitutes family violence. Having regard to it being an isolated incident of family violence, and Mr Matangi’s appreciation the impact of his conduct had on the victim, this primary consideration weighs against revocation of the cancellation decision.   

    Primary consideration 3 – The strength, nature and duration of ties to Australia

26. I am required to consider the impact of the decision on Mr Matangi’s immediate family members in Australia as well as the strength, duration and nature of any family or social links with Australian citizens, permanent residents and people who have a right to remain in Australia indefinitely. Subparagraph 8.3(4) provides that considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during their formative years.

27. Mr Matangi spent most of his life, including his formative years, in Australia.  His father, brother and sister reside in Australia and would be expected be affected by his removal.

28. Mr Matangi gave evidence that he is very close to his brother who is two years older than him. He intends to resume working with his father should he be returned to the community. He gave evidence of having a positive if not particularly close relationship with his sister. He said that recently he and his sister had started to talk more frequently and that she gives him good advice and life lessons despite being younger than he is.

29. Mr Matangi said he asked for his immediate family members to provide statements in support of his application but his siblings were busy, changed the subject or refused to do so. He said that his father does not speak English but wished him well in his application. Mr Matangi was unable to say how the cancellation of his visa might affect his father because they did not have a conversation about it. International Health and Medical Services (IHMS) records confirm Mr Matangi maintains contact with his brother.

30. In evidence is an undated letter of support provided by Mr Matangi’s father and late mother.[29] The letter appears to have been written for consideration during sentencing for the robbery offences in June 2022. His parents state they regard Mr Matangi as a good and loving son whose offending was due to his mental illness.[30]  

    [29] ST2/52

    [30] ST2/56

31. In an undated letter RM writes of her regret that their children were growing up without Mr Matangi’s presence and was anxious to help raise their children. She writes of her need for his support and the challenges of raising the children without him. Regarding his relationship with RM, Mr Matangi indicated that they had split up in June or July 2023. He explained that she needed a break but did not tell him the reason. She currently resides with their two children interstate and Mr Matangi said that he and RM did not maintain direct contact.

32. Mr Matangi has made some contribution to the community when playing professional rugby league and has been employed in the construction industry and with his father.

33. Having particular regard to the young age at which Mr Matangi arrived in Australia having spent his formative years in Australia, and the impact his removal would be expected to have on his family, notably his father, sister and brother, I afford this consideration significant weight in favour of revocation.

    Primary consideration 4 – Best interests of minor children affected by the decision

34. Direction 99 requires the Tribunal to make a determination about whether refusal to revoke the cancellation of the applicant’s visa is in the best interests of any minor children in Australia affected by the decision. The Direction at subparagraph 8.4(4) sets out a number of factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in relation to the child, the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles with the child, any known views of the child, and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions including through exposure to family violence.

35. Mr Matangi is father of two boys, Child A born April 2021 and Child B born August 2022. Both children currently live with their mother, RM, and her parents in Queensland. Mr Matangi and RM are no longer in a relationship. Mr Matangi fears not having the opportunity to see his children grow up and demonstrate that he wanted to change should he be returned to New Zealand.[31]

    [31] G17/102

36. In his request for revocation Mr Matangi writes that Child A was born ‘two weeks before’ he went into custody, and Child B was born ‘whilst in custody’, but that he speaks to each child twice a week and ‘AVL visits’.[32] Should he return to New Zealand,  he fears they would not have a role model and would lack financial support. 

    [32] G17/102

37. Mr Matangi and RM have separated and IHMS records from his time in immigration detention do not indicate he has been visited by the children but maintained contact through video calls.[33]  The evidence supports RM being primary carer for both children.

    [33] ST6/156

38. Mr Matangi also has a nephew born in August 2021 who he has contact with through his brother.[34] There is scant detail as to the nature and extent of any relationship he has with the child.

    [34] G17/103

39. Should Mr Matangi be returned to New Zealand there does not appear to be any reason that he could not continue to maintain and build his relationship with his children and nephew using video and phone calls.

40. While Mr Matangi’s role as a positive parental figure is largely untested, and he has had limited contact with the minor children owing to his incarceration and detention, I accept that it is in the best interests of his own children and his nephew that the visa cancellation be revoked.

    Primary consideration 5 - Expectations of the Australian community

41. Paragraph 8.5 of Direction 99 requires me to consider the expectations of the Australian community. Subparagraph 8.5(1) relevantly states: 

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

42. In FYBR v Minister for Home Affairs[35] the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.5 of Direction 99.

    [35] [2019] FCAFC 185, [75]

43. The Direction lists specific conduct which the Australian community as a whole expects would raise serious character concerns and an expectation that the person would not hold an Australian visa. I accept that Mr Matangi’s criminal conduct is inconsistent with the values of the Australian community and the Australian community as a norm expects his visa to be cancelled.

44. Having regard to the provisions of Direction 99 and Mr Matangi’s criminal offending, I find that the community’s expectations weigh in favour of not revoking the cancellation of the visa.

45. Turning to other considerations set out in Direction 99, Mr Matangi has not made any claims in relation to the legal consequences of the decision and there is no evidence of any relevant impact on the victim or Australian business interests.

    Other consideration B - Extent of Impediments if removed

46. I am required to consider the extent of any impediments that Mr Matangi may face if removed from Australia in establishing himself and maintaining basic living standards in New Zealand in the context of what is generally available to other citizens of that country.

47. The Respondent contends that Mr Matangi will be able to establish himself and maintain basic living standards in New Zealand.[36] Mr Matangi contends that he lacks family support in New Zealand and this may cause him significant distress and exacerbate his mental health conditions.

    [36] RSFIC, [46]

1. Mr Matangi is young and apparently physically healthy, and would not be expected to face substantial language or cultural barriers in New Zealand. He would also be expected to have access to health services, treatment and welfare in New Zealand.

2. Mr Matangi’s medical conditions require consistent care and treatment. His schizophrenia, substance use disorder, depression and psychosis will be expected to present significant impediments in establishing himself, building social connections, as well as obtaining and maintaining employment. The difficulties faced by Mr Matangi will be greater than in Australia as he will not be able to rely on support of his family or medical professionals who are already familiar with his care and requirements.  However, I consider the institutional and government support available to Mr Matangi in New Zealand is likely to be comparable that he would have access to in Australia and what is available to other citizens of that country.

3. The nature of Mr Matangi’s mental health condition and the challenges he faces are significant. Even marginal increases in the impediments he faces may have significant consequences for Mr Matangi. Accordingly,  this consideration is afforded significant weight in favour of revocation.

   CONCLUSION

4. Mr Matangi has resided in Australia since he was a child and spent his formative years in this country. He suffers from mental illnesses which have significant implications on his behaviour and capacity to make positive choices. In recognition of these factors, the considerations regarding the strength nature and duration of ties to Australia, and the extent of impediments if removed are afforded significant weight in favour of revoking the cancellation decision.

5. The best interests of minor children affected by the decision weighs in favour of revocation, but this consideration is afforded less weight given Mr Matangi’s limited role in the lives of the children and others performing the parental role.

6. The primary consideration regarding family violence is afforded medium weight against revocation of the cancellation decision. The expectations of the Australian community weigh against revocation, but are afforded less weight owing to the principle that Australia will generally afford a higher level of tolerance of criminal conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age, as is the case with Mr Matangi. 

7. Mr Matangi’s offending is of increasing seriousness. Though he appreciates the strong causal link between his offending and substance abuse, he has continued to abuse drugs including while in immigration detention. His offending while incarcerated and general conduct in immigration detention indicate there remains a very high risk he will reoffend. Given the nature of his crimes, which are violent and frequently involve the use of a weapon, the protection of the Australian community from criminal conduct weighs very heavily against revocation and is afforded significant weight.

8. On balance, I am not satisfied there is another reason to revoke the mandatory cancellation of Mr Matangi’s visa and the reviewable decision will be affirmed.

   DECISION

9. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal decides that the decision under review, being the decision of a delegate of the Minister dated 1 August 2023 not to revoke the mandatory cancellation of Mr Matangi’s Class TY Subclass 444 Special Category (Temporary) visa, is affirmed.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of

................................[Sgd]........................................

Associate

Dated: 17 November 2023

Date(s) of hearing:	10 and 11 October 2023
Applicant:	In person
Solicitors for the Respondent:	Ms G Guttmann, Minter Ellison