Mate and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 4129

Mate and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4129 (14 December 2023)
Division: GENERAL DIVISION
File Number: 2023/7307
Re:Steve Faalili Mate
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:14 December 2023
Place:Sydney

The reviewable decision is set aside and in substitution it is decided that there is another reason why the mandatory visa cancellation decision should be revoked under section 501CA(4) of the Act, having regard to the considerations prescribed by Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
................................[sgd]........................................
Mrs J C Kelly, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of visa under s 501CA(4) because applicant did not pass the character test – whether there is another reason why the cancellation decision should be revoked – Ministerial direction no.99 – protection of the Australian community – strength, nature, duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – extent of impediments if removed – reviewable decision set aside
LEGISLATION
Crimes (Sentencing Procedure) Act 1999 (NSW)
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Jacobs and Minister for Immigration and Border Protection (Migration) [2020] AATA 1524
Suleiman v 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
Mrs J C Kelly, Senior Member
14 December 2023
Introduction

Mr Mate, the Applicant, was born in New Zealand in January 1995. He arrived in Australia later that year aged ten months and has resided here ever since.
On 23 November 2022 his Class TY Subclass 444 Special Category Temporary visa (the Visa) was cancelled (the cancellation decision). He made representations seeking to have that decision revoked. His application was refused on 2 October 2023 (the reviewable decision). He applied to the Tribunal for review of that decision.
The Visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) (the Act) because the Applicant does not pass the character test, as defined in section 501 of the Act because he has a substantial criminal record as defined in sections 501(6)(a) and 501(7)(c) of the Act, having been sentenced to a term of imprisonment of 15 months, and he was serving that sentence. He had been convicted of the offence of Supply shortened firearm (not pistol) to other-T2 in a local court in New South Wales on 21 September 2022.
In summary, the Applicant has been successful. For the reasons set out below I have concluded that the reviewable decision should be set aside and another decision made in substitution.
The Issue
Because the Applicant does not pass the character test, the only issue for the Tribunal to decide is whether there is another reason why the cancellation decision should be revoked under section 501CA(4) of the Act, having regard to the considerations prescribed by ‘Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction 99).
Direction 99
Paragraph 5.2 of Direction 99 sets out six principles (the Principles) that provide the framework within which decision-makers should approach the task of deciding whether to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act. Informed by the Principles, the decision-maker must take into account the primary and other considerations in Part 2 of Direction 99 in deciding whether to revoke the mandatory cancellation of a visa.
Direction 99 requires that information and evidence from independent and authoritative sources should be given appropriate weight, and primary considerations should generally be given greater weight, although ‘other considerations’ should not necessarily be treated as secondary in all cases.[1]
[1] Paragraph 7(1)-(2) of Direction 99; Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23]-[32].
I will address each of the primary and other considerations that arise for consideration in this case.
Primary considerations
Protection of the Australian community
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 by non-citizens. Entering or remaining in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been law abiding, will respect important institutions, and not cause or threaten harm to individuals or the Australian community.[2]
[2] Direction 99, paragraph 8.1(1).
There are two factors in relation to the protection of the Australian community:
(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.
The nature and seriousness of the non-citizen’s conduct to date
The Respondent relied on conduct which is conveniently divided into three categories:
(i)Criminal infringement notices (two);
(ii)Driving offences arising from the fact that the Applicant has never held a driving licence (six);
(iii)Other criminal offences, most of which arise from three incidents that occurred in 2016, 2019 and 2022.
The Applicant’s first criminal infringement notice was issued on 19 December 2015 for Continue intoxicated etc behaviour after move on direction. His second was issued on 19 April 2020 for Use offensive language in/near public place/school. The outcome in each case was SDRO (State Debt Recovery Office) Enforcement, which I infer involved a fine.
He was convicted for the first time as an adult on 5 February 2015 of one Never licensed person drive vehicle on road – first offence committed on 23 December 2014 and fined $400. On 30 June 2016 he was convicted of Never licenced person drive vehicle on road - prior offence committed on 29 May 2016, fined $600, and disqualified from driving for three years.
On 5 September 2017, the Applicant was convicted of three Drive motor vehicle during disqualification period – 2^nd+off committed on 25 May 2017, 5 June 2017, and 24 July 2017. In the same order, his sentences were:
Fine: $600 Disqualification – driver: 2 years disqualification (Habitual offender): quashed
Fine: $500 Bond s 9: 18 months Disqualification (driver): 2 years Disqualification (Habitual offender): quashed;
Fine: $500; Bond s9: 18 months Disqualification (driver): 2 years Disqualification (habitual offender): quashed.
It is convenient to mention that the Applicant committed the offence of Dishonestly obtain property by deception-T1 on both 25 May 2017 and 5 June 2017, the same day he committed driving offences. He was convicted and sentenced on 5 September 2017 to fines of $300 and $400 respectively. The offences were for filling his vehicle up with petrol and driving away without paying. Before the Tribunal, the Applicant denied committing the offences and said that he was unaware of them until asked about them during the hearing. However, he admitted the offending to a corrective services officer on 9 August 2017 and said that he did not think that he would get caught because he was in his partner’s car.
He committed his last driving offence, Drive motor vehicle during disqualification period -2nd+off on 28 May 2021. He was convicted on 16 August 2021, fined $700 and disqualification driver for six months commencing that day.
On 2 July 2016 the Applicant committed the following offences: two Intimidate police officer in execution of duty w/o ABH-T2 and one Excluded person remain in vicinity of licensed premise. These offences resulted in the following convictions and sentences and other offences.
On 17 November 2016, the Applicant committed the offence Fail to appear in accordance with bail. On the same day a warrant was issued. On 25 July 2017, that warrant was executed.
On 5 September 2017, in addition to sentences referred to above, the Applicant was convicted of Excluded person remain in vicinity of licensed premises, with no penalty.
On 26 September 2017 the Applicant was convicted of the two July 2016 Intimidate police officer in execution of duty w/o ABH - T2 committed on 2 July 2016 and sentenced in each case to a Community Service Order (CSO) 80 hours.
The following warrants were issued in relation to breaches of the CSOs. On 19 December 2017 a (call up) arrest warrant was issued for breach of the CSOs. The arrest warrant was executed on 25 January 2018. On 27 February 2018 a (call up) arrest warrant was issued and executed for breach on 3 April 2018. On 1 May 2018 a (callup) arrest warrant was issued and executed for breach of CSO on 11 June 2018. On 13 June 2018 a (call up) arrest warrant was issued and on 25 August 2018 executed for breach of order.
On 29 August 2018 the CSOs were revoked and the Applicant was resentenced for the two offences: Intimidate police officer in execution of duty w/o ABH – T2. In each matter he was fined $800 and sentenced to imprisonment 8 months, commencing 29 August 2018, suspended on bond entry.
On 8 June 2019, about five weeks after his suspended sentence ended, the Applicant committed the following offences: Common assault – T2, Assault occasioning ABH – T2, Armed with intention to commit indictable offence – T1, and Fail to leave premises when required.
On 28 June 2019 the Applicant committed the offence Fail to appear in accordance with bail acknowledgement. On the same day, a warrant was issued. It was executed on 20 March 2020.
On 27 March 2020, the Applicant was convicted of the four offences committed on 8 June 2019 and sentenced for the first three offences listed above to an Intensive Correction Order (ICO) for 14 months commencing 27 March 2020, supervision 14 months, supervised by community corrections service, treatment program 14 months – alcohol rehab. He was fined $200 for the Fail to leave premises when required offence.
On the same day he was convicted with no penalty for the Fail to appear in accordance with bail acknowledgement offence committed on 28 June 2019.
The Applicant committed his most serious offence on 3 May 2022: Supply shortened firearm (not pistol) to other – T2. He was taken into custody on 7 July 2022 and convicted on 21 September 2022 when he was sentenced to imprisonment for 15 months commencing 7 July 2022 with a non-parole period of nine months.
The Applicant was transferred into immigration detention on 6 April 2023. His sentence ended on 6 October 2023.
Details of serious criminal offending
The 3 May 2022 Supply shortened firearm (not pistol) to other – T2 offence is the Applicant’s most serious offence. During the sentencing hearing on 21 September 2022, the Applicant’s counsel commented that the charge was relatively serious and it was not usual to deal with it in the local court jurisdiction. There had been negotiations with the Director of Public Prosecutions and the police to deal with and finalise the matter in that jurisdiction due to his limited role. The maximum penalty on indictment was 14 years. The local court was limited to impose a term of imprisonment for two years. The Applicant entered an early guilty plea which entitled him to a 25 percent reduction, which meant the available maximum head sentence was 18 months.
The magistrate found that it was a very serious offence because the community needs to be protected from the unlawful supply of unauthorised working shortened firearms. He said that the Applicant played a limited but vital role in the offence. The Applicant collected the gun which was in a shopping bag from an unknown person at the request of a co-accused and drove in his vehicle to deliver it to that co-accused. He and the co-accused, who was driving a separate vehicle, drove around at the delivery destination because they saw some suspicious vehicles. When they stopped, the co-accused got into the Applicant’s vehicle with an under-cover police officer. That was when the supply took place. The Applicant received $200.
The magistrate accepted that there was sincere and significant remorse and contrition and had confidence that the Applicant was so sorry that he had put his wife and children on the spot they were in because of his actions that he would be motivated not to learn how to commit crime from hardened gaol in-mates. His Honour found that there were special circumstances which reduced the statutory period for the non-parole period. The Applicant’s family, who supported him greatly, faced some hardship. The magistrate took into account the contents of the report prepared by Mr Chafic Awit, psychologist (for the purpose of the court appearance). The Applicant was not employed, he suffered Gambling Disorder, Substance Use Disorder and Alcohol Use Disorder. The Applicant was tempted to get easy cash and was not thinking of the consequence of his actions upon his family. The magistrate was not entirely persuaded that the mental health diagnosis entitled the Applicant to a reduction in the sense of moral culpability. In Mr Awit’s opinion, the Applicant required intensive psychological intervention to reduce his risk of re-offending.
The magistrate took into account the 2019 and 2016 offending and consequential sentences and that it was the Applicant’s first custodial sentence.
The only record of the events that occurred on 8 June 2019 which resulted in convictions for Common assault – T2, Assault occasioning ABH – T2, and Armed with intention to commit indictable offence was a COPS record. During cross-examination, the Applicant confirmed the following. He was at a nightclub in the Sydney CBD with members of his family, including his partner and brother. His sisters were arguing with another group. He had had only one drink. It was not what they made it out to be. He sort of remembers this incident. He swore and refused to leave. He may have been waving around a broken bottle. He probably yelled and screamed at security. He did not recall spitting in the face of a security officer.
I infer from his evidence, the COPS records, and the offences, that a security guard was injured by the broken bottle during the incident.
The Applicant’s brother told the Tribunal that as a consequence of this incident, he was convicted of an offence involving actual bodily harm for which he was sentenced to an ICO involving 150 hours of community service. That is his only conviction.
On 29 August 2018 the CSO in respect of the July 2016 offending against police was listed for revocation. The Applicant had completed only two hours of 80 hours of community service. The sentencing magistrate observed that the Applicant had been offered many chances to do community service but simply refused to do it. He prioritised work. He described the Applicant’s behaviour towards police as absolutely disgusting. The Applicant was at a tavern at 2am. He had been asked to leave because he was aggressive and swearing. He started swearing at police, wanting to smash them, abusing them, threatening them. He punched the passenger window. He continued intimidating and threatening them. The magistrate warned the Applicant that he would be looking at a full-time gaol term for any imprisonable offences which he committed in the future. The Applicant told the Tribunal that he was with his mates.
Consideration
The Applicant’s adult criminal record began in 2015 and ended in 2022 when he was imprisoned. His driving offences were frequent. He has been convicted of multiple violent offences. His offences against police officers in 2016 are considered very serious. His offending has increased in seriousness as reflected in the nature and length of the sentences, culminating in imprisonment. A court must be satisfied that no other penalty is appropriate before imposing a sentence of imprisonment.[3] He has demonstrated that he has no regard for the law and acts impulsively, without thinking of the consequences, including for the victims, the Australian community, his partner and three young children, his extended family and himself.
[3] Crimes (Sentencing Procedure) Act 1999 (NSW) s 5(1),
The Applicant’s criminal offending is very serious.
The risk to the Australian community should the Applicant reoffend
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. This is not a case where the harm that would be caused if it were repeated is so serious that any risk that it may be repeated is unacceptable.
If the Applicant engages in further criminal offending, individuals may be physically and/or psychologically harmed.
Mr Awit’s report was dated 20 September 2022. In his opinion, the Applicant met the diagnostic criteria for Generalized Anxiety Disorder, Major Depressive Disorder, Alcohol Use Disorder, Substance Use Disorder and Gambling Disorder. The latter three disorders were the Applicant’s response to the Generalized Anxiety Disorder, Major Depressive Disorder.
Mr Awit recorded the Applicant’s history. His parents had seven children. The family struggled financially. They moved many times in two different cities. He attended more than 10 primary schools. Domestic violence occurred between his parents and against him. He suffered bruising and welting. Both his parents worked until his mother ceased working a few years ago because of ill-health. The Applicant was in and out of Juvenile Justice Centres from the age of 15 for various offences, including fighting and stealing to support himself. He suffered physical and sexual assaults from a guard. He did not want to go into detail about those matters. He completed his Year 10 Certificate while in Juvenile Centres. Later, he completed a First Aid Course and White card for the construction industry. He was employed for only about two and a half years. He has not been employed since he was 24 years old (about 2019).
The Applicant has been in a de facto relationship with his partner for 13 years. They have three children who were aged eight, six and five (at the date of the report). They were residing with his parents because he was providing care for his mother. The Applicant faced a number of financial issues, which were exacerbated by his addictions.
In Mr Awit’s opinion, there was a psychological link between the Applicant’s conditions and the supply firearm offence which stemmed from his impaired decision-making ability during the period of the offence. He had suffered years of Anxiety and Depression symptoms stemming from the violence he suffered during his childhood/adolescence which was exacerbated after falling into alcohol/drug and gambling addictions. He has always struggled with his financial means. He struggled with emotional regulation and made wrong decisions one after the other. He had lost any interest in his life and fell deeper into his addictions. He struggled significantly with decision-making.
As noted above, in Mr Awit’s opinion, the Applicant required intensive psychological intervention to reduce his risk of reoffending. Mr Awit reported that the Applicant had agreed and wanted to desperately deal with his underlying issues. He wanted to be reunited with his partner and children and especially with his ill mother.
Mr Awit set out a comprehensive psychological treatment plan for the Applicant if released from prison. He did not provide an opinion as to the level of the Applicant’s risk of reoffending.

The Applicant said that he thought he had another appointment with Mr Awit about four months ago which had been cancelled and rescheduled.
The Applicant told the Tribunal that he undertook a drug and alcohol course while in prison in late 2022 or early in 2023. A fellow came in. It was once a week for an hour. He put his name down for other courses but was not incarcerated long enough. A NSW Department of Corrective Services Case Note Report dated 4 November 2022 stated that the Applicant was aware that he was not eligible for therapeutic programs while in custody. He was willing to participate in the CONNECT program.
That note also records the following. The Applicant stated that he had no alcohol or other drug issues and considered himself a social drinker, may drink to intoxication on rare or special occasions, and did not use drugs. His family and friends never questioned him and without being caught, there were no real consequences, so he kept offending. Being in custody had been a significant wake up call for him. His children are getting old enough to notice, understand, and be negatively impacted by his behaviours. He felt that he had grown out of having anger management issues and a quick temper which may have been linked to his Juvenile Justice experiences. He linked his impulsivity to defending his pride and taking things personally.
The Applicant denied saying that he did not use drugs. He said that being in gaol with no access to alcohol and drugs was what he needed. He does not think he would resume that behaviour. A lot of his offences were not because he had problems. Time away from his children made him realise it was not worth it. He has no contact with a lot of his mates from high school.
He has not undertaken courses while in immigration detention. He said that he did not know they were available.
His partner has made some inquiries about what is available in the community but found that nothing can be organised until the Applicant is released but will follow up those inquiries then.
The Applicant passed the driver knowledge test in March 2023. That is an important achievement for the Applicant and is evidence of rehabilitation. He had failed it a number of times in the past which frustrated him, resulting in him driving without a licence and the consequent offending. He told the Tribunal that he continued driving despite his offences because he did not think he was doing any harm to anyone and did not think he would get caught. On reflection he thought it was important to have a licence.
The Applicant agreed that his offending against police in 2016 was serious, although he did not remember the incident. He agreed the 2019 offences were serious.
The Respondent contended that the Applicant has not indicated that he understands the potential harm to the wider community from the unregulated sale of firearms or violence and that not revealing to the court or the police the name of the person who asked him to pick up and deliver the firearm indicates a disregard for the protection of the community.
I am not prepared to draw the latter inference. There may be other reasons why the Applicant did not disclose that person’s name, for example, fear. This was the first offence where the Applicant was involved with hardened criminals.
The Applicant said that if not regulated, a firearm could kill someone. It was a very serious matter. He did not think about that when he committed the offence. He just wanted the money to drink. He acknowledged that he knew he was doing something illegal but told the Tribunal that he did not know it was a firearm until the person to whom it was delivered opened the shopping bag.
A NSW Corrective Services Case Note Report dated 8 May 2020 recorded that the Applicant intended to attend a General Practitioner and obtain a mental health care plan. He said that he had not completed any prior programs as he does not like group settings.
A parole officer’s recent report dated 25 January 2023, raises a number of concerns about the Applicant’s attitudes. The interview took place while he was awaiting the revocation decision. The Applicant said at the hearing that he did not remember the interview with the parole officer.
The officer reported the Applicant saying that he found the firearm that day and thought he could make some money. His mate had been talking to someone and sold it to him. They did not know it was an undercover police officer. He would not elaborate how, where, when or his thoughts at the time. He continued to giggle throughout and advised he did not know. When asked what changes he would make so that he did not end up where is currently, the Applicant said that he wished he had not done it. It was more about being stupid and selling it to a police officer. He and his co-offenders are of the same mind set. They should have investigated who they were selling to.
During the hearing he denied saying that they should have been more careful about the person they sold the firearm to and denied laughing. He told the Tribunal that he could sit here all day talking about the corrections officer. I infer that he was very critical of that officer.
The Applicant advised the officer that he did not need intervention, programs, or support. The officer assessed that his attitude towards offending and authority showed that he was not contemplating change.
The officer made the following records after interviewing the Applicant’s partner and his mother on 1 February 2023, with whom he planned to live. His partner had nil concerns about the Applicant’s associates and his possession of a weapon for sale or for the safety of her children knowing those offences. She did not feel that the Applicant needed to be connected to any service upon release. She felt that he would be able to make any changes required. His mother was vague about alcohol and other drugs. She believed that he had issues, however, she had not witnessed this and advised that he drinks to get drunk most weekends. She had no concerns about his associates. She felt that support to reduce or cease his alcohol and drug use on release would be beneficial.
His violent offending in 2016 and 2019 was committed when he had been drinking alcohol. His motivation for the 2022 offence was to get money for alcohol.
The Applicant told the Tribunal that he will not reoffend because he knows the repercussions of offending: kids having no Dad.
During the hearing the Applicant accepted that his psychological conditions contributed to his offending. He wanted to drink. He had a lot going on in his head and wanted to forget everything.
The Applicant has a history of non-compliance with court orders, as set out earlier in this decision. He told the Tribunal that he had prioritised working over complying with the CSO and that he did not take Corrections seriously but that now he would go to community service. He said that he failed to appear in accordance with a bail acknowledgement on 27 March 2020 because he forgot and went to work. He thought he could go after work and did go but court was finished.
He did not undertake the alcohol rehabilitation under his ICO because supervision ended early because of the COVID-19 pandemic. A file note dated 16 June 2020 recommended suspending supervision. It also recorded that the Applicant had provided a mental health plan and an appointment had been made with a psychologist. The Applicant did not see a psychologist.
During his time in one correctional facility, he had three ‘misconducts’ which resulted in him being moved to another facility. He said that his classification was not changed. The reports of his conduct reflect his disregard for and frustration with authority when he does not agree with the rules. However, his conduct did not prevent him being released at the end of his non-parole period.
One incident was recorded of abusive/aggressive behaviour towards staff since he has been in immigration detention. He was not allowed to take a bottle of liquid with him to a visit from his wife and children.
The Applicant has expressed remorse and shame for his actions.
The Respondent questioned whether the Applicant’s current support network would contribute to his deteriorating mental health and recidivism, given the history of violence against him by his parents, if he continued to live with his parents. The Applicant pointed out that that violence occurred when he was younger. Things are different now. He is not going to blame anyone for what he did. It is not their fault.
There is conflicting evidence about when the Applicant and his family lived with his parents. I accept that there was a period before he was taken into custody when he and his immediate family did not live with his parents. After he was taken into custody his partner and their children moved back to live with his parents. When he was interviewed by the parole officer, he was planning to live with his parents and immediate family. His partner has very recently moved out of his parents’ home. The Applicant’s sister has returned from interstate. His partner lives nearby, where she has the support of the family, and in particular, the support of the Applicant’s mother who cares for the children before and after school, while the Applicant’s partner goes to work. The lease ends in May 2024.
Whether the Applicant lives with his parents or not, he will continue to have a very close relationship with them and his extended family. His family support network will continue as it was before he was taken into custody. He may have less contact with his mates from school. It is unclear to what extent any of his relatives, including his partner, knew of his offending or appreciated its seriousness. Rather than finding that they contributed to his offending, I find that they did not deter him from offending. I have concluded that the Applicant just does wants he wants to.
The evidence about the Applicant’s employment history is inconsistent. I accept that he worked as a labourer for a roofing company from 2016 to 2018, as a removalist from 2014 to 2016, and as a labourer from 2018 to 2019, but not necessarily full-time throughout that period. He mostly worked for cash. He was unemployed from 2019 and during the COVID-19 pandemic. As he said, he had no qualifications for other jobs. He has not provided a character reference from any of his employers or co-workers, although the Personal circumstances form advised such information may be provided. He said that he contacted the roofing company and he can go back there or go into construction. If he is released, he will go back to work and be with the children.
The Applicant has a strong work ethic.
The Applicant has taken two steps towards rehabilitation – passing his driver knowledge test and undertaking the course relating to alcohol and drugs while in prison. He has expressed remorse and contrition and contends that he will not reoffend. He has not undertaken the comprehensive intensive psychological intervention recommended by Mr Awit to address the mental health issues that contributed to his offending. His plans to do so are vague. His and his partner’s commitment to engaging with such intervention is unclear, given their comments to Corrective Services to the effect that he does not have an alcohol and drug problem. In addition, whether he will prioritise engaging in such a plan over working is doubtful given the time and possible cost involved and his history or prioritising work over complying with court orders.
The sentence to imprisonment and consequent cancellation of his visa is the first time that a penalty has made any impression on him. He has been physically separated from his children for whom he was caring before being imprisoned. He said that he was starting to think about what might happen rather than being impulsive. However, he has continued to disregard rules that he does not agree with while in prison and immigration detention. There were negligible consequences of doing so. He has continued to act impulsively.
The extent that he has reflected on his offending behaviour and is motivated not to reoffend has not been tested in the community.
There is a moderate to high risk that that Applicant will reoffend.
The protection of the Australian community weighs against revocation.
Strength, nature and duration of ties to Australia
The Applicant has resided in Australia since he was 10 months old. His partner of 14 years is an Australian citizen. They have three minor children who were born in Australia. His parents, four sisters, brother and their families reside in Australia and a number of them have provided statements supporting him. The Applicant’s mother has had surgery and ceased work as a consequence. He and his partner helped cared for her at that time. The Applicant has numerous extended family and friends who reside in Australia who would be negatively affected by a non-revocation decision. The letters of support from some of them and photographs support that conclusion.
The Applicant has been employed, as set out above. He may or may not provide financial support to his family. If he is not working, he will look after the children.
This consideration weighs in favour of revocation.
Best interests of minor children in Australia
The Applicant’s children were born in 2014, 2015 and 2017. He has a very close parental relationship with each of them as demonstrated by his evidence and the letters from the two older children and the family photographs. They visit him with his partner once or twice a week, depending on sporting commitments. He video-calls them every day. He is concerned that the boys, who are aged nine and six are not listening to their mother, for example when she tells them to go to bed. They are hard for her to control. He has little chats with them. I infer that they take more notice of him than they do of their mother.
He will be able to continue contacting them by video-calls if he returns to New Zealand, but that is not comparable to being physically present in their lives every day.
Before the COVID-19 pandemic, the Applicant took the children to school most days, to sports training two days a week, and to games on Saturday. They all play rugby league. He partied and slept on the weekends but not during the week because he did not have money. During the pandemic he was with them seven days a week. He acknowledged that being absent partying and then sleeping on the weekend did not have a very good impact on the children. If he resumes that behaviour, it is likely to adversely impact the children.
He has been physically separated from them since 7 July 2022.
Since he has been physical absent from their lives, the children have been cared for by their mother and before and after school by the Applicant’s mother. They see their paternal grandfather, aunts, uncles, and cousins regularly.
The Applicant has four nieces and two nephews who range in age from 17 to two. He has a close but different non-parental relationship with each child as he described in the Personal Circumstances form. He speaks to some of them by telephone. They have responded to his physical absence in different ways.
This consideration weighs in favour of revocation.
Expectations of the Australian community
The Applicant has engaged in repeated and increasingly serious offending in breach of the Australian community’s expectation that non-citizens obey Australian laws while in Australia and that the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[4] This expectation applies regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community.[5]
[4] Direction 99, paragraph 8.5(1).
[5] Direction 99, paragraph 8.5(3).
It is not for a decision-maker to make an assessment of the community’s expectations.[6] The Tribunal must have due regard to the deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused.[7] The decision-maker determines the appropriate weight to be given to this consideration.[8]
[6] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [66]-[67] (Charlesworth J) and at [104] (Stewart J) and Direction 99, paragraph 8.5(4).
[7] FYBR at [75] per Charlesworth J.
[8] Jacobs and Minister for Immigration and Border Protection (Migration) [2020] AATA 1524 at [72].
The Applicant’s criminal history includes offences against police officers and violent offences against security guards doing their job. The supply firearm offence is very serious.
The expectations of the Australian community weigh against revocation.
Other considerations
Extent of impediments if removed from Australia
The Applicant is 28 years old and in good physical health. He has the mental health issues previously described. There are no substantial or cultural barriers if he returns to New Zealand.
He will have access to comparable health and social welfare support in New Zealand as he has in Australia. He has work skills which he can use in New Zealand. There is no corroborative evidence of his claim that he will be unable to apply for work for five years.
The Applicant’s partner says that she and the children will not move to New Zealand with the Applicant. She was born in Australia. Her parents moved back to Samoa in 2017. She has no family in New Zealand. She and the Applicant would have to work. They would have no support for the children in New Zealand. The Applicant said that he would not allow her and the children to go to New Zealand because of that lack of support. He mentioned that his nephews live close to the children and walk them to school.
The Applicant’s brother gave evidence that he has lived in New Zealand previously. It was easy to live there but the family part was hard. He has family there but not close family.
The Applicant will not have the support of his extended family.
He will face hardship re-establishing himself alone in New Zealand.
This consideration weighs in favour of revocation.
Conclusion
The primary considerations protection of the Australian community and expectations of the Australian community weigh in favour of not revoking the reviewable decision.
The primary considerations strength, nature and duration of ties to Australia and best interests of minor children in Australia weigh in favour of revocation, as does the other consideration extent of impediments if removed.
On balance, the considerations favouring revocation outweigh the considerations not favouring revocation.

DECISION

The reviewable decision is set aside and in substitution it is decided that there is another reason why the mandatory visa cancellation decision should be revoked under section 501CA(4) of the Act, having regard to the considerations prescribed by Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

...................................[sgd].....................................
Associate
Dated: 14 December 2023

Dates of hearing:

4 & 5 December 2023

Applicant:

In person

Solicitors for the Respondent:

Ms M Teo, AGS

Dates of hearing:	4 & 5 December 2023
Applicant:	In person
Solicitors for the Respondent:	Ms M Teo, AGS