Maurangi and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2024] AATA 1373

Maurangi and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2024] AATA 1373 (3 June 2024)
Division:GENERAL DIVISION
File Number: 2022/8032
Re:William Pera Maurangi
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:3 June 2024
Place:Melbourne

The Tribunal affirms the reviewable decision.
..............[sgd].........................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION – Mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444
Special Category (Temporary) visa – persistent polysubstance abuse – extensive criminal history
– substantial criminal record – mild intellectual disability – Applicant fails character test – non-
revocation decision – affirmed by previously constituted Tribunal in 2022 – appeal to Federal Court
of Australia – application remitted to Tribunal – whether another reason to revoke cancellation
decision – Ministerial Direction No. 99 applied – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Returning Offenders (Management and Information) Act 2015 (NZ)
CASES

AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022]

FCAFC 175

Ali v Minister for Immigration and Border Protection [2018] FCA 650

Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595

Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513

Bettencourtv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021)

287 FCR 294

BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]

FCAFC 199

Brownlie v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023]

FCA 436

CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021)

284 FCR 416

CTK17 v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211

CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101

DBWG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024]

FCAFC 3

DOB18 v Minister for Home Affairs [2018] FCA 1523

Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60

Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]

FCAFC 78

Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250

FYBR v Minister for Home Affairs (2019) 272 FCR 454

FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56

GXXS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA

468

Hughes v The Queen (2017) 263 CLR 338

Hunt v Minister for Home Affairs [2021] FCA 507

Ibrahim v Minister for Home Affairs (2019) 270 FCR 12

Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2

Jagroopv Minister for Immigration and Border Protection (2016) 241 FCR 461

Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA

1120

Lesianawai v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024]

HCA 6

Manebona vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023)
298 FCR 516

Marzano v Minister for Immigration and Border Protection [2016] FCA 1180

Minister for Home Affairs v Omar (2019) 272 FCR 589

Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180

Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v DOM19 (2022)

289 FCR 499

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 (2021)

285 FCR 540

Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v Viane (2021) 395

ALR 403

Mouflih v Minister for Home Affairs (2019) 168 ALD 148

Murphy v Minister for Home Affairs [2018] FCA 1924

Nathanson v Minister for Home Affairs (2022) 178 ALD 536

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582

Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219

PQSM v Minister for Home Affairs [2019] FCA 1540

Rukuwai v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 157

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545

Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023)

409 ALR 234

Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285

FCR 187

Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203

Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531

YKSB v Minister for Home Affairs [2020] FCAFC 224

REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
3 June 2024
INTRODUCTION

Mr William Pera Maurangi (“the Applicant”) has asked the Tribunal to review the Respondent’s decision not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) Visa.
The hearing was held on 14, 16 and 17 May 2024. The Respondent was represented by Ms Laura Mills of counsel, instructed by Ms Felicidade Lay of Minter Ellison Lawyers. The Applicant was represented by Mr Matthew Kenneally of counsel instructed by Ms Emily Young of Hannan Tew Lawyers. The Tribunal was greatly assisted by the focused written and oral submissions from both parties. The assistance provided by Mr Kenneally and Ms Young, who appeared pro bono, is particularly appreciated. Their public-spirited work reflects the finest traditions of the Australian legal profession.
For the following reasons, the Tribunal affirms the reviewable decision.

BACKGROUND

The Applicant was born in the Cook Islands and is a New Zealand citizen.[1] He experienced difficulties at school[2] and was cared for at times by his grandparents and other relatives.[3] After his parents separated,[4] the Applicant migrated to Australia with his mother and two younger siblings in 2007.[5] He was then 10 years of age and is currently 27. The Applicant’s father remained in New Zealand and there are references to him being a member of an ‘outlaw motorcycle gang’ who died approximately three years after the Applicant arrived in Australia.[6] The Applicant has returned to New Zealand twice, most recently in June 2019.[7] He has no biological children but refers to nieces and nephews.[8]
[1] Exhibit A1, 1 [1]; Exhibit R1, 645 [21]-[23].
[2] Exhibit R1, 254, 368.
[3] Ibid 315 [2], 367, 519, 528, 630; Exhibit A2, [6].
[4] Exhibit R1, 367.
[5] Exhibit A1, 1 [2]-[6]; Applicant’s Statement of Facts, Issues and Contentions, 2 [5]-[6].
[6] Exhibit R1, 253, 484, 527, 624; Exhibit R2, 165.
[7] Exhibit R1, 80.
[8] Ibid 69-71.
The Applicant has an extensive criminal history in Australia from a young age,[9] which he attributes to persistent drug and alcohol addiction. His first adult offences were committed in 2015 and his crimes have since traversed the use of violence or threat of violence, dishonesty, breaches of conditional liberty, property damage, using a carriage service to harass, behaving in a riotous manner, and dangerous, unlicenced, or unregistered driving. He has received multiple prison sentences since 2017.[10]
[9] Ibid 35-39.
[10] Ibid.
On 4 October 2021, a delegate of the Minister cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“The Act”).[11] This followed convictions on 17 September 2021 that included persistent contravention of a family violence intervention order, making a threat to kill, unlawful assault, theft of a motor vehicle, property damage, and committing indictable offences on bail.[12] The Applicant received a total effective sentence of 14 months’ imprisonment.[13]
[11] Ibid 81-87; Migration Act 1958 (Cth) (‘The Act’).
[12] Ibid 47-58.
[13] Ibid 57.
The Applicant asked to have the visa cancellation revoked[14] but, on 27 September 2022, a delegate of the Minister declined to do so (“non-revocation decision”).[15]
[14] Ibid 59-76.
[15] Ibid 20-34.
On 2 October 2022, the Applicant sought review of the non-revocation decision.[16]
[16] Ibid 3-8.
On 19 December 2022, the Tribunal, differently constituted, affirmed the non-revocation decision.[17] The Applicant appealed this to the Federal Court of Australia.
[17] Ibid 639-670.
On 31 October 2023, Justice Snaden quashed the Tribunal’s decision by consent of the parties and remitted the matter for determination according to law.[18]
[18] Ibid 672-673.
The matter was reconstituted within the Tribunal. At a case management hearing on 18 January 2024, scheduling orders were issued for the re-hearing.
The hearing was scheduled to commence in person on 14 May 2024. Late on 13 May 2024, however, the Tribunal was advised that the Applicant had ‘tested positive…for COVID 19’.[19] The following then occurred:
(a)On 13 May 2024, arrangements were made for the Applicant’s appearance by video from Melbourne Immigration Detention Centre (“MIDC”).
(b)On 14 May 2024, MIDC staff were unable to connect to the Tribunal’s video hearing system. This was despite other local devices successfully doing so using the video link provided by the Tribunal. The Tribunal was advised by MIDC that the Applicant’s personal mobile telephone had a broken camera and there was no spare device to connect him to the hearing by video. MIDC tried to establish a video connection from other rooms but, after several hours of unsuccessful effort, the hearing was adjourned for the remainder of 14 May 2024.
(c)Despite further testing on 15 May 2024, MIDC was still unable to establish a video connection. The Tribunal requested that the Applicant be delivered to the resumed hearing on 16 May 2024 in person, which was organised by the Respondent.
(d)Because of the Applicant’s positive COVID test, he appeared by video on 16 and 17 May 2024 from an adjoining hearing room in the Tribunal’s Melbourne Registry.
[19] Advice from the Supervisor of Immigration Detention Operations in Victoria and Tasmania.
The Tribunal routinely depends on audio-visual links in custodial settings to hear cases with a very short statutory timeframe for decision. When these links fail, redundancy measures and expert assistance must be available to quickly implement an alternative.

LEGISLATIVE FRAMEWORK

Section 500(1)(ba) of the Act, read in conjunction with s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”), are the sources of the Tribunal’s jurisdiction to review a non-revocation decision by a Ministerial delegate.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a visa granted to a non-citizen if the Minister is satisfied the person does not pass the character test. The ‘character test’ is defined in s 501(6) of the Act:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); …
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record, including if the person has been sentenced to a term of imprisonment of 12 months or more.[20]
[20] The Act (n 11) s 501(7)(c).
Under s 501CA(3) the Minister must provide notice of the cancellation decision as soon as practicable and invite the affected person to respond. Section 501CA(4) of the Act confers a power to revoke a visa cancellation decision if the non-citizen makes representations in accordance with the invitation. The decision-maker must revoke if satisfied that one of the relevant requirements in s 501CA(4)(b) of the Act exists.[21]
[21] Marzano v Minister for Immigration and Border Protection [2016] FCA 1180, [48] (Moshinsky J), affd (2017) 250 FCR 548.
Sections 500(6H)–(J) of the Act preclude the Tribunal from having regard to oral information or documents submitted in support of an applicant’s case, unless the information is set out in written form and given to the Minister at least two business days prior to the hearing.[22]
[22] Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v DOM19 (2022) 289 FCR 499.
Section 33(1)(a)–(b) of the AAT Act provides that the procedure of the Tribunal is within its discretion and ‘shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of [the AAT Act] and every other relevant enactment and a proper consideration of the matters before the Tribunal permit’. Section 33(1)(c) of the AAT Act states that ‘the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate’.

ISSUE

The Applicant does not pass the character test by reason of his convictions on 17 September 2021.[23] Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision. The remaining issue under s 501CA(4)(b)(ii) is to determine whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ to do so. [24]
[23] Exhibit R1, 57 [14].
[24] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, 191–192 [3]–[5] (Katzmann J), 198 [24] (Derrington J), 219 [103] (O’Bryan J).
The Full Court in Bettencourt has reflected with approval upon the approach taken in Viane, about how ‘another reason’ is determined.[25] Their Honours held:[26]
(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
[25] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294; Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [66]-[68] (Colvin J).
[26] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294, 302 [27].
More recently, in Plaintiff M1/2021, the plurality of the High Court stated how representations made under s 501CA(4) of the Act should be addressed:[27]
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations…the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
(Citations omitted).
[27] Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (‘Plaintiff M1/2021’), [22]-[25] (Kiefel CJ, Keane, Gordon, and Steward JJ).

DIRECTION 99

In making its decision, the Tribunal must comply with a ministerial direction made under s 499(1) of the Act, which is known as “Ministerial Direction 99” (“the Direction”).[28] The Direction ‘imposes requirements that must be given effect in order for there to be a valid decision made under s 501CA(4)’.[29] The Tribunal is said to ‘stand in the shoes of the original decision-maker’ and must make ‘the correct or preferable decision’[30] based on the material currently before it.[31]
[28] The Act (n 11) s 499(2A); CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416, 417–418 [4] (Rares, O’Callaghan and Jackson JJ); Nathanson v Minister for Home Affairs (2022) 178 ALD 536, 540 [4] (‘Nathanson’); Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (commenced 3 March 2023) (‘The Direction’).
[29] PQSM v Minister for Home Affairs [2019] FCA 1540 at [22] (Colvin J).
[30] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286, 314 [96]-[98] (Hayne and Heydon JJ), 324 [134] (Kiefel J) (‘Shi’); Nathanson (n 29) 541 [7].
[31] AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175, [25] (Wigney, Abraham and Rofe JJ); Nathanson (n 29); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi (n 30) 299 [40], 315 [100], 324-325 [134].

The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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 noncitizens 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 cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens 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 8.5(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.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision. Clause 8 of the Direction identifies the following primary considerations:
(1) Protection of the Australian community from criminal or other serious conduct;
(2) Whether the conduct engaged in constituted family violence;
(3) The strength, nature, and duration of ties to Australia;
(4) The best interests of minor children in Australia;
(5) Expectations of the Australian community.
Clause 9(1) of the Direction sets out a non-exhaustive list of other considerations:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations’. This does not preclude the Tribunal, however, from giving an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[32]
[32] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23], [28] (Colvin J).
Clause 7(3) states that ‘[o]ne or more primary considerations may outweigh other primary considerations’. The weighing process, however, is left to individual decision-makers.[33]
[33] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 473, [57].

EVIDENCE

The Tribunal has considered the Applicant’s Statement of Facts, Issues and Contentions (“ASFIC”) dated 28 March 2024, reply submissions dated 9 May 2024, and the Respondent’s Statement of Facts, Issues and Contentions dated 30 April 2024. The following material was taken into evidence during the hearing:
(a)Remittal Bundle lodged by the Respondent numbering 678 pages;[34]
[34] Exhibit R1.
(b)Supplementary documents lodged by the Respondent numbering 320 pages;[35]
[35] Exhibit R2.
(c)Applicant’s undated and unsigned 12-page statement;[36]
[36] Exhibit A1.
(d)Unsigned and undated 3-page statement of the Applicant’s mother;[37]
[37] Exhibit A2.
(e)One-page statement of the Applicant’s half-brother dated 9 May 2024;[38]
(f)One-page statement of the Applicant’s cousin dated 9 May 2024;[39]
(g)Unsigned and undated 2-page statement of the Applicant’s girlfriend;[40]
(h)One-page statement of the Applicant’s former employer dated 2 May 2024;[41]
(i)Three attachments linked to the ASFIC as follows:
(i)Article from The Age online dated 23 November 2023 titled: ‘Serco officer charged as rampant drug use in detention centres exposed’.[42]
(ii)Nine-page Independent Detention Case Review from Robert Cornall AO dated March 2020 released by the Department of Home Affairs under FOI;[43]
(iii)Three-page online information sheet dated January 2019 from the NZ Department of Corrections titled ‘Returning Offenders’.[44]
[38] Exhibit A3.
[39] Exhibit A4.
[40] Exhibit A5.
[41] Exhibit A6.
[42] Exhibit A7.
[43] Exhibit A8.
[44] Exhibit A9.

Applicant’s evidence

The Tribunal has considered the Applicant’s documentary evidence, including revocation submissions[45] and a four-page statement dated 20 October 2022.[46] At the commencement of his oral testimony he made three amendments to Exhibit A1 as follows before adopting it as his evidence in this proceeding:[47]
(a)The Applicant clarified that the incident referred to in his statement where he stabbed another student with a pencil, occurred in New Zealand rather than in Australia.[48]
(b)The Applicant stated that the items he passed to or received from other detainees between compounds while in immigration detention was tobacco ‘most of the time’.[49]
(c)The Applicant stated that contrary to his previous intention to claim privilege against self-incrimination about a violent incident in immigration detention on 12 November 2023,[50] he no longer intended doing so. The Tribunal was satisfied that this decision was preceded by legal advice and that the Applicant understood his rights.
[45] Exhibit R1, 60-79.
[46] Ibid 519-522.
[47] Exhibit A1.
[48] Exhibit A1, 2 [8]. See also Exhibit R1, 368, which states the Applicant ‘reportedly stabbed a student in the eye with a pencil and was ‘deported’ back to Cook Islands’.
[49] Ibid 9 [53].
[50] Ibid 9 [47].
The Applicant’s oral testimony took up most of a hearing day and is summarised as follows.

Life in Australia

The Applicant’s mother, siblings, and other relatives reside in Australia. Other siblings and family members reside in New Zealand and the Cook Islands. The Applicant agreed he only lived with his mother for about two years after arriving in Australia before running away from home in 2009 when he was 13. When asked about his mother’s evidence that he came under the influence of two older cousins who were 15 and 17-year-old ‘street kids’,[51] the Applicant insisted he ‘ran away under [his] own influence’. Although the Applicant visited and spoke with his mother at times, he did not live with her for about the next seven years.
[51] Exhibit A2, 2 [10].
The Applicant did not advance the interests of any minor children during oral testimony. When asked about nieces and nephews referred to in his documentary evidence, he referred to them in a general way. His only contact with them is during ‘family group chats’, but he has not otherwise seen or had contact with them ‘since being locked up’.

Alcohol and drug use

The Applicant said he used cannabis daily from the time he left home at 13 until his most recent imprisonment but does not plan on continuing to do so if released. He also referred to using inhalants for several years and said he enjoyed the hallucinogenic effects but stopped when a friend died from such use. In terms of alcohol, the Applicant agreed that he frequently drank alcohol from a young age until his most recent imprisonment. In terms of crystal methamphetamine (“ice”), the Applicant said he started smoking it about a decade ago from the age of 17.
The Applicant agreed he often gets angry after using ice because of ‘bad withdrawals’ that result in frustration. He said that he ‘didn’t have a proper strategy when coming off it’ and committed offences.[52] On other occasions, such as when he entered a vehicle driven by a single female occupant and stated: ‘I want your fucking car’,[53] the Applicant claimed to have been intoxicated by alcohol rather than ice affected. Ms Mills asked the Applicant about a period he spent living with a relative in Sydney in 2016, when he was reportedly using ‘great quantities of drugs’.[54] The Applicant denied this and said he only used cannabis during this time. Upon returning to Melbourne and living with his mother, the Applicant said he used ice occasionally and alcohol ‘quite often’. When asked by Ms Mills about an incident when he threatened to kill his mother and damaged her house and property, the Applicant recalled that he ‘had no weed…was coming down [from ice] and having withdrawals’.
[52] Exhibit R1, 265, 521.
[53] Ibid 264.
[54] Ibid 256.

Offending and other misconduct

The Applicant accepted the accuracy of his criminal history and attributes his offending predominantly to alcohol and other drug (“AOD”) abuse. He recalled being ice-affected when committing his first adult offence[55] and using over half a gram ‘every couple of days’. He claimed to have been in a ‘different headspace’ at the time of this offence because a friend ‘kicked [him] out’ of the house. He recalled becoming ‘frustrated’ and taking his ‘anger out on [the victim] for no reason’. The Applicant said he was not substance affected while committing other crimes. When asked about an incident where he chased a former employer around a worksite in his car,[56] the Applicant denied trying to scare the employer, claiming he was just trying to ‘communicate with him’ about why the employer laid him off.
[55] Ibid 293.
[56] Ibid 138.
In terms of family violence, the Applicant accepted that his mother, two former girlfriends, and others took intervention orders out against him. He agreed that he made numerous calls to one of these girlfriends while imprisoned and tried to arrange for her to visit him under a false identity, despite knowing contact was not permitted under an intervention order. The Applicant claimed he was not taking drugs or alcohol when committing this offence. When asked by Ms Mills about his offending against a second girlfriend, the Applicant agreed she tried to help him remain abstinent by seeing a counsellor, attending anger management sessions, engaging with Headspace, seeing a doctor for medication, and ‘trying and get a routine every day’. The Applicant said he ‘had a lot of excuses’ and did not attend counselling, including because he prioritised work. The Applicant said he tried to reduce his daily cannabis use at times but found ‘withdrawal a lot harder than [he] thought’. He relapsed into ice use because of ‘hanging with the wrong crowd’. When asked by Ms Mills who the ‘wrong crowd’ was, the Applicant said some were ‘mates’ he bought ‘weed’ from, while others were people he had not met. The Applicant said that during the violence against his second girlfriend he was experiencing withdrawal from ice and ‘had no cigarettes and weed’ during the previous three days. This caused him to feel ‘rage and irritation’ that he ’didn’t know how to cope with so [he]…took it out on her’.
In terms of his conduct in custodial settings, the Applicant was asked during cross-examination about multiple incidents, including one on 12 November 2023.[57] The Tribunal again confirmed prior to this line of questioning that the Applicant understood his privilege against self-incrimination and that no negative inference would be drawn if he exercised it. The Applicant wanted to respond to questions about this incident, which was confirmed by his barrister. The Applicant claimed that: drugs and alcohol were not a factor; he was ‘sitting there casually singing’ when the victim wrongly assumed the Applicant called him ‘a dog’; the Applicant then stated to the victim ‘what the fuck is your problem [and] told him to come to [the victim’s] cell [to] sort it out’; that an unnamed person told the Applicant the victim had a knife; and the Applicant engaged in self-defence when he and another detainee punched the victim several times after the victim was pulled to the ground. The Applicant claimed to have no knowledge that the other detainee intended to join him in assaulting the victim. He said that he and this other detainee ‘went to the slot’ after this incident. When asked about the inconsistencies between his current narrative and the contemporaneous report that does not refer to a knife, the Applicant insisted the victim ‘did pull something out’, but the Applicant ‘didn’t know what it was’. When asked by Ms Mills if he agreed the victim was not a threat to him and the other assailant when on the ground, the Applicant agreed he ‘wasn’t a threat at that time’. When asked why he entered a cell with the victim to ‘sort it out’ if he knew the victim had a knife, the Applicant said if he ‘backed down someone might call [him] a dog’. When asked why he didn’t refer to acting in self-defence when interviewed by detention staff, the Applicant responded: ‘I didn’t want to drop a statement on someone – I’d be called a dog’.
[57] Exhibit R2, 139.
When asked about another incident where he reportedly kicked a door and struck a window of an area occupied by a detention officer,[58] the Applicant said he was hungry and frustrated because food expected from a family member was not delivered. When asked by Ms Mills if it was acceptable to strike a window and door at a guard’s office if frustrated, the Applicant responded that detention centres are ‘really unpredictable’. He said that he ‘wasn’t really making an effort’ at that time but had since adopted other strategies for dealing with frustration and anger, such as ‘trying to get into a routine’ and ‘going to the gym’.
[58] Ibid 129.
The Applicant agreed that on 11 April 2023 he punched a hand sanitiser dispenser.[59] When asked why, he said it was because he was feeling frustrated. He also agreed that he deliberately broke a condom machine on 4 September 2023 until it fell off the wall[60] because he ‘just didn’t get why’ it needed to be there. The Applicant said immigration detention is worse than prison because he had a ‘release date’ and ‘proper routine’ in the latter, whereas in detention he does not know when release will occur, which adversely affects his mood and motivation.
[59] Ibid 113.
[60] Ibid 125.
The Applicant agreed there were multiple incidents recorded by detention staff between January 2023 and January 2024 of him passing or receiving contraband between compounds. He stated at the commencement of his evidence that this was mostly tobacco. When asked about a record dated 30 September 2023 in which the Applicant was observed passing a bottle containing an unknown liquid substance into an adjoining compound and disregarding instructions by a detention officer to stop,[61] the Applicant claimed he was ‘not too sure’ of the contents and had been ‘told to pass it to someone’ in the other compound by ‘one of the detainees’. When asked about incidents that appeared to involve diversion of medication and abusive / aggressive behaviour towards medical staff,[62] the Applicant said he refused to take his medication because of the way that International Health and Medical Services (“IHMS”) staff required him to take it.[63]
[61] Ibid 135.
[62] Ibid 100; 104; 108.
[63] IHMS provides primary and mental health care services within Australia’s immigration detention network.

Rehabilitation

The Applicant agreed he was assisted by the Youth Support and Advocacy Service (“YSAS”) between 2011 and 2019 for his AOD abuse but persistently relapsed. During this period, he participated in several residential rehabilitative stays.[64] This included Dandenong Hospital in 2017 for drug-induced psychosis, where he remained for about three weeks.[65] When asked about the treatment he received, the Applicant said they did ‘activities, outings, barbecues’, cooking lessons, and sessions of yoga and ‘mindfulness’. The Applicant accepted he was ‘detoxed from alcohol and drugs while there’ and then provided with emergency accommodation and other support. He nevertheless relapsed into AOD use and reoffended. When asked if he could recall what treatment was provided in Dandenong Hospital, the Applicant replied: ‘Not really’. He agreed, however, that some counselling and therapy was provided. When asked about lessons learned from this counselling, the Applicant said it was ‘how to try and open up more’ but conceded he ‘didn’t make as much of an effort to engage with counselling as [he] should have’. He said that he relapsed into drug use and reoffended because the emergency housing provided to him was only for six weeks, following which he returned to ‘the street’. The Applicant recalled being counselled by some of his cousins to make meaningful and enduring changes, but by May 2019 he had relapsed. When asked why, he claimed not to have received sufficient help after a stabbing incident in 2016,[66] which caused him to have ‘flashbacks, PTSD, and not taking proper medication to cope’. When asked about the circumstances of this stabbing and reference to it being gang related,[67] the Applicant said he was drunk and could not recall.
[64] Exhibit R1, 634.
[65] Exhibit R1, 381.
[66] Ibid 316 [8].
[67] Ibid 52 [2], 206, 362, 487.
The Applicant said his past non-compliance with Community Corrections Orders (“CCO”) was because he put work ‘before anything else’ and felt ‘stressed’ and ‘overwhelmed’ when unable to attend appointments. He said that he ‘never completed’ any of the corrections orders received.
The Applicant agreed he has not received formal counselling for PTSD or anger issues. He submitted that some discussions with a prison nurse ‘felt a bit like counselling’ because they discussed drug use and his PTSD. The Applicant said he stopped taking this medication ‘last year’ because of the way detention centre staff required him to take it. He explained they provided it in a diluted form at a particular time, and he had to take it in the presence of health workers, rather than later in his cell as he preferred. He said the medication made him ‘eat too much’, that he has ‘lost a bit of motivation in detention’, and ‘going to the gym is enough’. The Applicant said he is open to resuming the medication if released.
When asked why he had not made enduring changes given the rehabilitative support provided, the Applicant said he ‘did well for a while’ but had not ‘made the counselling effort’. The Applicant said despite refusing medication and not attending counselling for the last 12-18 months, previous counselling was beneficial.[68] When asked about his reference to having ‘no motivation’, the Applicant said if he is allowed to stay in Australia he will be ‘more motivated to do all these things’.
[68] Exhibit A1, 8 [41].

Plans if allowed to remain in Australia

The Applicant said he plans to return to work as a concreter and has ‘other things lined up’. His former employer is ‘willing to accommodate’ attendance at counselling. The Applicant wants to reconnect with family members[69] and intends living with a woman he commenced a relationship with in 2023, who the Tribunal will refer to as “Ms TA”. The Applicant said he has not lived with a romantic partner before but is confident Ms TA will assist with his rehabilitative needs. When put by Ms Mills that a former girlfriend tried to assist him in the past, but the Applicant committed family violence committed against her, the Applicant said: ‘things are different now’ because back then he was ‘on drugs, alcohol, and unstable’. The Applicant said he also intends engaging with Headspace. When asked by Ms Mills if he was aware Headspace only provides support to clients between 12 and 25 years of age, the Applicant said he was not. When asked by Ms Mills if he had made any counselling enquiries, the Applicant said he has not.
[69] Exhibit R1, 148.

Plans if returned to New Zealand

The Applicant said he fears returning to New Zealand because ‘life back there is not much of an opportunity for [him]’ and there is no family support.[70] He has returned to New Zealand twice since arriving in Australia. The first time was for a family reunion in 2010, during which he stayed with his father and an aunt. He returned for three days in 2019 for the funeral of his grandmother. The Applicant agreed that his older sister and other relatives still live in New Zealand. When asked if he could count on any of these relatives for support, the Applicant responded: ‘I haven’t really spoken to them. My sister is a busy mother’.
[70] Ibid 62.
In revocation submissions the Applicant referred to ‘getting into gangs’ as a problem he foresees if returned to New Zealand.[71] A custodial record dated 28 October 2021 notes the Applicant’s claim that he intended to ‘join a gang and make money doing illegal activities’ because he ‘doesn’t care’[72] if removed to New Zealand. When asked if this report is accurate, the Applicant said he ‘can’t remember’.
[71] Ibid 77.
[72] Ibid 166.
The Applicant said he would engage in counselling if returned to New Zealand but not work as a concreter because he prefers to ‘get into something else’. When asked by Ms Mills what this is, the Applicant said: ‘I’m not too sure’.

Evidence of Applicant’s mother

The Applicant’s mother gave evidence under oath and adopted a three-page statement as true and correct.[73] This is to the effect that the Applicant fell under the influence of two older cousins who were ‘street kids’ when he was 11 or 12 years old and left home at 13. He reportedly lived with an uncle in New South Wales, before returning to Melbourne about six months later and living with his mother. The Applicant left his mother’s home soon after following an incident of family violence.
[73] Exhibit A5.
The Applicant’s mother states her relationship with the Applicant resumed after his imprisonment in 2021. Since his immigration detention they speak on the telephone daily and she has provided him with some financial support. The Applicant’s mother states he can live with her and her partner if released. The Applicant’s mother worries the Applicant ‘will do something stupid’ if returned to New Zealand and only has ‘very limited family or social support’. One of the Applicant’s siblings and two aunts live in New Zealand, while another sibling and his paternal grandmother live in the Cook Islands. Because of her medical issues, the Applicant’s mother feels she would be unable to visit the Applicant.
The Applicant’s mother gave oral testimony, which is summarised as follows:
(a)The Applicant did not live with her for about six years after leaving home at the age of 13 but would ‘come and go’ for visits. She does not know how the Applicant supported himself, but he did not attend school. The Applicant lived with an uncle in Sydney for a time in 2016 but returned to Melbourne because of a ‘problem’ with the uncle. She does not know if the Applicant used drugs while living in Sydney.
(b)The Applicant’s mother said he lived with her for about six months after returning from Sydney and she was aware he smoked cannabis but did not know he used ice. The Applicant’s mother agreed she wrote a statement for police after an incident of family violence in December 2016.[74] She said the Applicant became angry about once a week while living with her, but the incident in December 2016 was the worst. She asked for an IVO to prevent the Applicant from coming to her home, but later varied this so he could live with her after release from prison. She said the Applicant called her weekly from prison during the term of this IVO. Although her statement referred to the Applicant living with her sister after release from prison in 2017, she could no longer remember if this was correct.
(c)The Applicant’s mother said she has a daughter, son, about 30 grandchildren, aunts, uncles, and other relatives living in either New Zealand or the Cook Islands. The Applicant’s paternal relatives also live in New Zealand. When asked if the Applicant could reach out to family members in New Zealand or the Cook Islands for support if returned, the Applicant’s mother responded: ‘I don’t know’.
(d)The Applicant’s mother has undergone kidney dialysis since August 2023 and currently receives treatment three days each week. Her partner assists her with this. The Applicant’s mother said this does not stop her from working full time in a factory.
[74] Ibid 216.

Evidence of Ms TA

Ms TA gave evidence under oath and adopted a two-page statement as true and correct.[75] Her statement is to the effect that she has known the Applicant ‘through mutual friends going back to…high school’ and they were ‘reintroduced…through mutual friends’ when the Applicant was last imprisoned. They commenced a romantic relationship in October 2023 while he was in immigration detention and have since been ‘taking things day by day’. Ms TA speaks with the Applicant by telephone daily and visits him weekly. She intends accompanying him to New Zealand if he is removed. Ms TA states she has seen the Applicant’s most recent sentencing remarks dated 17 September 2021, believes he has learned from his mistakes, and is ‘not fearful of living with him in the future’.
[75] Exhibit A5.
Ms TA gave oral testimony, which is summarised as follows:
(a)She is studying at TAFE for a Certificate II qualification that will be completed ‘in a few weeks’. She had planned to do an automotive apprenticeship but no longer intends on doing so. She has not secured a job yet but has ‘spoken to the job network place’ and does not think it will take that long.
(b)Ms TA lives in a caravan park and receives Centrelink benefits as her only source of income. She intends supporting the Applicant financially until he finds work.
(c)Ms TA said she is aware of the Applicant’s crimes, including family violence, and feels this is attributable to drug use and ‘inability to cope with emotions’. She knows about the Applicant’s use of ‘meth’ and thinks this was ‘on and off for a long time’. Ms TA said she plans to assist the Applicant in reengaging with counselling and ‘getting back on medication’ to help him regulate his emotions. Ms TA said she has undertaken counselling herself and can refer the Applicant to organisations he is suited to. She has not made any enquiries about this yet.
(d)When asked by Ms Mills if she has any experience herself with drugs and alcohol, Ms TA responded: ‘Previously yes – but I haven’t touched drugs in over a year now’. In response to further questions from Ms Mills, Ms TA said she used ‘meth’ for ‘about a year’. She considers this a strength because having kept herself ‘clean for this long’, she intends being an ‘ally’ for the Applicant.
(e)When asked if she was aware of the Applicant’s involvement in misconduct in immigration detention, Ms TA responded: ‘He raises his voice and I think things are taken out of context’.
(f)Ms TA said if the Applicant is returned to New Zealand she will accompany him, help him get counselling, and stay off drugs.

Evidence of Applicant’s former employer

The Applicant’s former employer gave evidence under affirmation and adopted a one-page statement dated 2 May 2024 as true and correct.[76] His statement is to the effect that the Applicant worked for his business as a concreter prior to mid-2021, and he is ‘likely to have work available for him’. Oral testimony from this witness is summarised as follows:
(a)Because of new ‘council and government contracts’, he is confident there will be ‘more consistent work’ in future.
(b)The witness was unaware of the Applicant being at work while drug or alcohol affected in the past. He would cease to employ the Applicant if this occurred and said there are random testing protocols on his work sites.
(c)The witness was unaware of an IVO taken out by a former employer but said this did not change his mind about offering the Applicant employment: ‘Hopefully he’s grown up…learned…woken up to himself’.
(d)When asked by Ms Mills if the Applicant could leave work to attend counselling, the witness said this depends on the work needing to be done and ‘what time of day’ the appointment is.
[76] Exhibit A6.

Other statements

Statements from the Applicant’s half-brother[77] and one of his cousins[78] were taken into evidence unchallenged after Ms Mills said these witnesses were not required for cross-examination. The Tribunal has considered their evidence.
[77] Exhibit A3.
[78] Exhibit A4.

PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct

Clause 8.1 of the Direction 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.
(2) Decision-makers should also give consideration 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.
Under cl 8.1.1 of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)   crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)    causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)   crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.

Tribunal consideration: Nature and seriousness of the conduct

The Applicant’s criminal history discloses multiple court appearances as a juvenile for violent and other conduct between the ages of 14 and 17.[79] Convictions were not recorded, and the courts dealt with him through Youth Supervision Orders and Good Behaviour Bonds. The High Court’s decisions in Thornton[80] and more recently in Lesianawai[81] makes it impermissible for the Tribunal, when exercising the power conferred by s 501CA(4) of the Act, to take into account findings of guilt against a juvenile offender where convictions are not recorded.[82] In Lesianawai, the High Court held at [46]:
‘Similar to Thornton, in this case the delegate was precluded from taking into account so much of the plaintiff's "youth offending" and "finding[s] of guilt" that related to the offences for which he was sentenced by the Children's Court prior to his reaching 16 years of age and the fact that he was charged with, or supposedly convicted of, those offences.’
(Footnotes removed).
[79] Ibid 38-39.
[80] Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 234 (‘Thornton’).
[81] Lesianawai v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 6 (‘Lesianawai’).
[82] Exhibit R1 252 [74].
It follows that the Tribunal places no weight on the Applicant’s juvenile court appearances. His first offending as an adult occurred on 2 August 2015 and resulted in charges for attempted armed robbery, criminal damage, and theft,[83] of which the Applicant was convicted on 23 August 2016.[84] Multiple subsequent convictions are recorded during court appearances between 2016 and 2021. During sentencing on 17 September 2021, the Magistrate stated:[85]
[83] Ibid 291, 293-297.
[84] Ibid 287.
[85] Ibid 44-57.
‘William Pera has pleaded guilty to consistent contravention of intervention order, theft of a motor vehicle, intentionally damaging property, making a threat to kill, unlawful assault, committing indictable offences whilst on bail. You're 23 and have 17 pages of priors...
Relevant for my purposes that in May of last year, you were sentenced to seven months' imprisonment for similar serious family violence offending, including persistent contravention of intervention order, reckless conduct endangering life, recklessly cause injury, and using carriage service to harass. You've also been subjected to a number of community-based sentences for family violence offending which you've breached on multiple occasions.
…you first came before me in June this year for persistent contraventions of an intervention order over a month or so period of May or June of last year. These contraventions related to numerous calls you made to the victim whilst you [were] in custody. The nature of those calls ranged from jealousy to expressions of love, to hints that the victim withdraw the matter. At that point, given your prior history, I adjourned the matter and ordered a full CCO assessment, including a justice plan.
In the intervening period before I sentenced you, you again committed family violence offending in July of this year, within a month or so of me giving you an opportunity to stay in the community pending sentence. That offending involved attending at the victim's property, you got into an argument with her which culminated in you grabbing the victim around her neck and strangling her for three seconds, whilst at the same time threatening to kill her. After you released her, she
fled, and neighbours attended given the noise, and escorted her to safety.
Rather than walk away, you became aggressive and attempted to get inside the property, and threatened to go and get a butcher's knife. Ultimately you went into the victim's car and got a steering lock and used it to bang on the doors and windows before throwing a brick through the kitchen window. You entered inside through the window, and an argument took place before police attended. In my view, you're incredibly lucky that for whatever reason, you don't face charges in the County Court on indictment for this incident.
…
Ultimately, you were found unsuitable for a CCO, and as you were remanded and further family violence offences since you were assessed by corrections, concerns
corrections had about your aggression, how they can work with you moving forward.
…
In your case, I view this as a serious example of a threat to kill and an unlawful assault. Indeed, in my view, the assault is of such an aggravated nature that it cannot, in my view, be sufficiently punished as an unlawful assault, and the purpose of sentencing, I regard it as an aggravated assault on a female. The threat to kill is a very serious example, given it was uttered in circumstances where you had the capacity to end the victim's life with your hands around her neck. The intensity of her fear, in my view, could not be understated.
The court and the community know too well the prevalence of family violence by men perpetrated against women. The courts have repeatedly emphasised the need
for this court, and indeed all courts, to strongly condemn family violence, given the breach of the trust and the gravity of harm. The community abhors such conduct and will not tolerate it. Family violence undermines the foundations of our society in terms of the family. It's for these same reasons the breach of a family violence order, as occurred here, exacerbates the seriousness of the offending.
As I indicated, I consider this to be a serious example of those two primary offences of a threat to kill and the unlawful assault. The strangulation is a particularly serious form of family violence in my view, and in my view, this form of assault poses serious
concerns to me in terms of risk of future risk of family violence, given it's an accepted red flag for intimate partner homicide in the future, as identified by the MARAM framework. This does not increase your sentence, but it's relevant in terms of the sentencing exercise and weighing community protection.
…
It was conceded on the Applicant’s behalf that his most recent offending ‘is plainly grave and an escalation’.[86] It was submitted, however, that his other offending is ‘not at the more serious end of the range’, nor ‘especially frequent’, has ‘not been constant’, and correlates with ‘periods of significant tumult in his life’.[87] This includes a stabbing incident in 2016 and escalation of his drug use in 2019. It is contended that apart from CCO breaches, the Applicant ‘did not commit any offences of significance’ from the time he became an adult ‘until May 2019’.[88] Nonetheless, the Tribunal notes that during an approximate four-year period between 2016 and 2019, the Applicant appeared in courts eight times and was convicted of offences that included: recklessly causing injury, unlawful assault, threatening to inflict serious injury, attempted armed robbery, committing an indictable offence while on bail, repeated contraventions of CCO and other court orders, behaving in a riotous manner in public places, throwing a missile that injured an elderly person, and several counts of criminal damage or intentionally destroying property.[89]
[86] ASFIC, 4 [23].
[87] Ibid 4 [24].
[88] Ibid [23].
[89] Exhibit R1, 36-38.

In terms of the Applicant’s conduct in custodial settings, some positive reports are noted, including his performance as a food line billet[90] and instances of polite and respectful behaviour.[91] The Applicant contends that after his 2021 sentencing, the prospect of deportation ‘greatly changed [his] outlook on imprisonment and life generally’.[92] Multiple reports in evidence, however, refer to the Applicant’s continuing misconduct after his 2021 sentencing until early 2024. This includes references to him damaging property, diverting medication, retrieving items thrown from other compounds, and engaging in abusive, aggressive, threatening, or non-compliant behaviours.[93] One relatively recent report dated 12 November 2023 states a ‘Code Black’ was called in response to the Applicant and another detainee throwing punches at a third detainee who had been pulled to the ground.[94] The Applicant’s claims regarding this incident were earlier summarised.
[90] Ibid 169 (1 January 2022), 190.
[91] Ibid 172 (24/04/2022); 173; 188.
[92] Exhibit A1, 6 [35].
[93] Exhibit R1, 165 (22 October 2021); Exhibit R2, 94, 97, 100, 104, 108, 113, 116-119, 122-125, 135, 142, 149.
[94] Ibid 139-140.
The Applicant’s reply submissions dated 9 May 2024 state the following about incidents in immigration detention:
‘…The detention incidents indicate the applicant is frustrated in detention. However, apart from the alleged incident on 12 November 2023, those frustrations have not manifested in direct physical violence. The applicant has damaged property on 4 April and 11 September 2023, and did bang on the door to the SERCO guard’s office on 10 September 2023, but none of these situations escalated. The incidents generally arise in the context of frustration with the conditions of detention. There is no suggestion in the incidents the applicant has resorted to using drugs and alcohol’.

Tribunal findings: Nature and seriousness of the conduct

The Applicant’s has a very comprehensive criminal history in Australia. As an adult he has committed approximately 40 offences between 2015 and 2021. This includes committing or threatening violence against strangers, women close to him, and recklessly engaging in conduct that endangers life. He has also committed crimes involving dishonesty such as theft of a motor vehicle and has a poor driving history.[95] He has repeatedly contravened CCO through further offending.[96]
[95] Ibid 276-280.
[96] Ibid 452.
The Tribunal rejects the contention that the Applicant’s offending only correlates with ‘periods of significant tumult in his life’, and that he ‘did not commit any offences of significance’ from the time he became an adult ‘until May 2019’. His substance abuse and offending are persistent and habitual. The frequency of the Applicant’s offending and its cumulative effect reinforce the very serious nature of his conduct.
Imprisonment is a sentence of last resort and the most severe sanction available.[97] The Applicant has received multiple prison sentences of increasing duration, which have not deterred him from relapse and reoffending.
[97] Sentencing Advisory Council (Vic), ‘Imprisonment’, (Web Page, accessed 28 April 2022) <
The Direction does not limit the range of conduct that can be considered very serious or serious.[98] This includes behaviour for which convictions are not recorded. For example, notwithstanding the absence of drug-related convictions in his criminal history, the Applicant refers to persistent use of illicit drugs like cannabis and ice since a young age. In terms of conduct in custody, Kenny J has cautioned that contemporaneous records should be used carefully, and their ‘cogency and reliability’ considered.[99] These are usually obtained under summons and do not assume the status of evidence until tendered and admitted. The value of these records is often tested during questioning, which occurred on this occasion. Having regard for the large number of records relating to the Applicant’s misconduct, written by different authors on different days, with no evidence to suggest they recorded other than what they saw or was conveyed to them by the Applicant, and with much of the information confirmed by the Applicant himself, it is clear he has engaged in persistent violent, aggressive, abusive, or non-compliant behaviours in custodial settings.
[98] The Direction (n 28), cl 8.1.1(1).
[99] CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101, 123-124 [98]–[100].
The Applicant’s adult convictions and other conduct is collectively very serious.

Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

Clause 8.1.2(1) of the Direction provides:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Clause 8.1.2(2) of the Direction states that in assessing the risk non-citizens pose to the Australian community, decision-makers must take into account, 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:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
This aspect of the Direction requires assessment of the risk the Applicant poses to the Australian community in the event he reoffends, taking into consideration both the nature of any harm and its probability. Justice Kerr has referred to this as a ‘future-focused assessment’[100] and evidence of past offending ‘is not, of itself, significantly probative’ of committing another offence.[101]
[100] CTK17 v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211 [90] (Kerr J). See also Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, [59] (Katzmann J); Murphy v Minister for Home Affairs [2018] FCA 1924, [37] (Mortimer J); Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 (2021) 285 FCR 540, 561 [81]; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120, [63].
[101] Hughes v The Queen (2017) 263 CLR 338, 392 [154] (Nettle J).
In Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595, Mortimer J, as her Honour then was, reasoned at [78] that:
…[t]he nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.
In Guo,[102] the High Court held that past actions can be legitimate predictors of future behaviour. The majority observed, however, that past events ‘are not a certain guide’ and, depending on circumstances, the probability of an event occurring could be so low as to be ‘safely disregarded,’ or at the other extreme, ‘may border on certainty.’[103] The majority also observed there are several factors arising in making such evaluations, and that it is ‘ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.’[104]
[102] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574 (‘Guo’).
[103] Ibid 574-575.
[104] Ibid 575.
In terms of the Applicant’s recidivism risk, it is submitted ‘there are reasons to be optimistic about [his] prospects if released’.[105] Mr Kenneally said the Applicant now has a much better platform to achieve an abstinent and law-abiding life, citing by way of example a period between March 2017 and May 2019 where no offending is recorded. He said the Applicant has abstained from drugs since his most recent imprisonment, received some counselling for AOD issues, has better insight into his mental health, is supported by Ms TA, and has improved relationships with his mother and other family members.
[105] ASFIC, 4 [25].
Risk assessments have consistently found the Applicant constitutes a ‘high’ risk of reoffending,[106] requires a ‘High Needs Reintegrative Assessment’,[107] and has moderate to high needs based on AOD screening.[108] In one assessment produced ahead of a County Court appearance in 2018, he scored ‘high’ in every risk factor, including those relating to AOD problems, Companions, Antisocial patterns, and Procriminal Attitude / Orientation.[109] He has been assessed as a ‘high’ placement and escort risk in immigration detention.[110]
[106] Exhibit R1, 130, 134, 172, 176-177, 187, 347, 457.
[107] Ibid 151.
[108] Ibid 184.
[109] Ibid 453; The Level of Service Risk Assessment methodology used by Corrections Victoria is based on an internationally validated actuarial tool used in custodial settings to assess recidivism risk and criminogenic needs. See Don Andrews and James Bonta, The Level of Service Inventory–Revised (Multi-Health Systems Inc. 1995).
[110] Exhibit R2, 8.
A CCO Assessment dated 22 August 2016 noted that the Applicant intended to remain abstinent from methylamphetamine, but ‘continues to use cannabis and reported that he does not intend to cease using this’.[111] A report from psychologist Mr Warren Simmons in 2017, commissioned by the Applicant’s then lawyer, recorded the following history:
[111] Exhibit R1, 348.
‘Drug and Alcohol History
At the age of 14, Mr Maurangi was introduced to cannabis while he was living on the street and found the drug relaxing, calmed him down and made him sleep better. He was smoking the drug daily from the start, smoking a few grams a day. At its peak, he was using a quarter of an ounce a day and said that his cannabis use has continued until the present time, although he added that it has a deleterious effect on his thinking and he found that he could not remember things.
For a period of two to three years beginning at the age of 14, Mr Maurangi began inhaling paint, petrol or the fumes of butane gas cans. He would have one can at a time and was doing this every week to every month, saying that he liked the hallucinations this engendered. He had been losing quite a deal of weight during this time and said that he ceased using the drug shortly after a friend died in front of him, when Mr Maurangi was afraid that he would end up like him.
Methamphetamine use began at about the age of 17, with Mr Maurangi asserting that he has only ever smoked the drug, revealing that he likes the adrenaline and the eagerness that it generates, adding that he is always so keen to do something. He likes the fact that it keeps him up and said that he was using the drug on a daily basis, having up to two points a day. This continued until he went to live with his family, claiming that he decreased his use of the drug and essentially ceased when living with his family. However, he did state that there has been occasional use and he has injected methamphetamines on one occasion.
Mr Maurangi was given a sip of alcohol by his father at the age of nine in the Cook Islands, stating that he did not begin regular consumption until in Australia at the age of 16, when he began drinking with his friends. He would consume up to two boxes of alcohol a week and said that he liked having fun and laughing, although he admitted that he would occasionally become involved in fights. He disclosed drinking daily at times, but there were some weeks where he did not consume alcohol, adding that this was related to the amount of money that he had.
Mr Maurangi indicated that he has ingested ecstasy on a few occasions, and also tried Buprenorphine. Apart from injecting methamphetamines on one occasion, he has not injected any other drug. Mr Maurangi indicated that although he has never been involved in any drug and alcohol treatment programs in the past, he was planning on treatment in Ballarat before he was incarcerated. He does feel that he would benefit from a residential rehabilitation program, indicating that he feels his problems with substance use are quite significant’.[112]
[112] Ibid 361-362.
A report from the Department of Health and Human Services ahead of the Applicant’s 2018 County Court appearance refers to him using cannabis since the age of 13 and binge-drinking from the age of 15.[113] The Applicant was noted in Judicial Monitoring Reports to have relapsed into increased cannabis use in 2018 despite completing residential rehabilitation.[114] Because of his ‘excessive chroming at a young age’, the ‘possibility’ was raised that he may have an acquired brain injury, which deserved ‘further neuropsychological assessment’.[115] The Applicant undertook an assessment with neuropsychologist Dr Matt Treeby in late 2019, following which Dr Treeby produced a report stating in part:
‘With respect to substance use, Mr Maurangi said that he began drinking to intoxication up to twice a week during late adolescence. He said that he moderated his drinking as his behaviour became problematic when intoxicated. He is nicotine dependent and smokes up to 10 cigarettes per day. He commenced smoking cannabis at the age of 15 and since the age of 19, he has reportedly smoked between 1g and 3g of cannabis daily. He had last used cannabis on the day prior to his assessment. He reportedly began using methamphetamine (ice) at the age of 16 and quickly fell into a pattern of daily use. He reportedly experienced an episode of drug-induced psychosis and ceased using ice at the age of 19. He sniffed inhalants (glue and paint) daily between the ages of 14 and 16. He has otherwise experimented with cocaine on occasion’.[116]
[113] Ibid 368.
[114] Ibid 381, 443, 454.
[115] Ibid 453.
[116] Ibid 625.
Other evidence states the Applicant does not have an acquired brain injury,[117] whereas a summary by Dr Sally Chow in November 2022 contains a question about this: ‘acquired brain injury secondary to substance use – ARBIAs report for court. completed in 2019?’[118]
[117] Ibid 132, 143, 195.
[118] Ibid 527.
An assessment report from Port Philip Prison in 2021 noted the Applicant’s claims about regularly using cannabis, ice, and alcohol immediately prior to imprisonment and that he was not engaged with AOD services before being taken into custody.[119] The Applicant’s unchallenged evidence is that illicit drugs are available in prison and immigration detention[120] but he has refrained from using them.
[119] Ibid 133, 141, 160, 195.
[120] Exhibit A7.
Anger control has been a persistent feature of the Applicant’s history, with multiple court orders and past supports directed at assisting him in this area.[121] The Applicant has stated that ‘his sickness was anger[122] and he lost jobs because of it.[123] There are expert references to the Applicant doing things on the ‘spur of the moment’ and displaying angry and non-compliant behaviours during rehabilitative programs.[124] Other references point to unmet rehabilitative needs including AOD support, ‘coping, mood, anger-regulation, and impulse control difficulties’.[125] At his most recent sentencing the Court considered the Applicant’s rehabilitative prospects to be ‘guarded’, stating:
‘The extended CCO report I ordered set out a number of relevant matters, including the numerous opportunities you were afforded by the courts over the years which led to contraventions. Your reluctance to engage in a meaningful way in regard to conversations about drug use, and the trouble it led you into in the past. Concerning
for me, the first time you were spoken to by an assessor, this conversation in an aggression by you against a backdrop of inappropriate and aggressive behaviour by you to CCS staff going back to 2018.
…
As best as I can ascertain, your prospects of rehabilitation, whilst alive, are at this point in my view guarded, given the seriousness of what I'm faced with, as well as your prior matters. You have family in the community, a mother you wish to care for, the capacity for work, but beyond that, there is little that gives this court comfort that upon release, you can escape your repeated history of violent offending.
…
The sentence I impose must send a message that serious family violence, breaches of court order can only lead to gaol, particularly in cases of strangulation. If this was the first or even the second time you'd come before the court, Mr Pera, even for family violence, I would be open to considering imposing a long therapeutic order, even in the face of non-compliance. That is not the case here.
Having regard to the corrections report, I have little faith you'll comply with a CCO given your prior history. I'm not convinced your desire to remain in this community or in this country to care for your mother will serve as a protective factor for long, given it was present during the time of the offending in the past.
Indeed, given the continued serious family violence perpetrated by you, in my view, no other sentence other than one involving a non-parole period is open to me. I do take into account though the effect of the intellectual disability and mental health issues in terms of your moral culpability, and the need for rehabilitation, and accordingly, I will set a longer than usual parole period (indistinct) opportunity of supervision in the community.[126]
[121] Exhibit R1 258, 295, 316, 320-321, 345, 348, 358, 368, 374, 380, 451, 486 [7], 488, 534, 625.
[122] Ibid 368.
[123] Ibid 254, 455.
[124] Ibid 368-369, 380-382, 625.
[125] Ibid 370, 381, 625, 628.
[126] Ibid 51 [19], 55 [28].
In revocation submissions the Applicant referred to potential involvement with ‘gangs and more criminal activity’ if returned to New Zealand.[127] A remand/bail brief noted that a stab wound to the Applicant’s neck during a dispute in early 2016 was ‘believed to be gang related’.[128] The Applicant said this incident adversely affected his mental health and caused him to relocate to New South Wales for some months.[129] A custodial record dated 28 October 2021 records the Applicant telling the interviewer that if removed to New Zealand he intended to ‘join a gang and make money doing illegal activities’ because he ‘doesn’t care’.[130] If released in Australia he is noted to have said: ‘he just wants to work and smoke marijuana’.[131] During this hearing the Applicant could not recall saying this.
[127] Ibid 77.
[128] Ibid 206.
[129] ASFIC, 2[10].
[130] Exhibit R1, 166.
[131] Ibid 166.
The Applicant referred to engagement with YSAS over a long period, which the evidence shows has been sporadic since 2011 and not always respectful or compliant.[132] Despite rehabilitative supports since a young age, the Applicant’s need for ‘further engagement in specialised intervention’ and strict supervisory conditions continues to be highlighted.[133]
[132] Ibid 316 [8], 362, 368, 370, 381, 442-445, 450, 455-456, 465-468, 487-488, 634.
[133] Ibid 456-457.
The Applicant has undertaken some rehabilitative courses in custody, including a ‘Skating on Ice Program’ on 11 March 2022, in which he is reported to have ‘participated positively’.[134] He also appears to have previously completed ‘What Makes a Man’ and ‘Safer Living Program’ on an unspecified date.[135] It is submitted on his behalf that he undertook AOD counselling sessions until early 2023 and has remained abstinent in immigration detention despite illicit drugs and alcohol being available.[136] During his oral evidence, the Applicant confirmed he has chosen not to undertake further counselling during the last 12-18 months due to low motivation and also ceased taking the medication prescribed to him because of the way IHMS staff require him to take it.
[134] Ibid 170, 186.
[135] Ibid 171.
[136] ASFIC, 3 [20], 4 [21]; Exhibit A7; Exhibit A8.

Tribunal consideration: Legal consequences

Section 5 of the Act defines ‘non-refoulement obligations’ non-exhaustively as including Australia’s obligations as a party to certain Conventions, Protocols and Covenants, and ‘any obligations accorded by customary international law…of a similar kind to those mentioned’ in those treaties. As held in Ibrahim v Minister for Home Affairs, non-refoulement obligations are ‘not confined to the protection obligations to which s 36(2) refers’.[193]
[193] Ibrahim v Minister for Home Affairs (2019) 270 FCR 12, 35 [103].
The Tribunal must give active intellectual consideration to the Applicant’s clearly articulated representations about risk of harm, regardless of characterisation.[194] This is in the context of ‘another reason’ for revocation under s 501CA(4) of the Act, where claims are not required to meet predetermined benchmarks and can be less categorical than the more comprehensive Protection Visa assessment process under s 36A of the Act.[195] Active intellectual consideration of the Applicant’s claims requires the Tribunal to:
‘…bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate.’[196]
[194] YKSB v Minister for Home Affairs [2020] FCAFC 224, [5]; Minister for Home Affairs v Omar (2019) 272 FCR 589, 602-610 [34]–[44].
[195] The Direction (n 28), cl 9.1.2(2); Plaintiff M1/2021 (n 27), 605 [39]; Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513, 521 [27]-[28]; Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28].
[196] Plaintiff M1/2021 (n 27), 598 [24].
The Applicant’s claims focus predominantly on obstacles in re-establishing himself if removed. These are considered under Extent of impediments per the Direction. In revocation submissions, however, he also referred to ‘getting into gangs’ as a problem he foresees if returned to New Zealand.[197] A custodial record dated 28 October 2021 records the Applicant stating that if removed to New Zealand he intended to ‘join a gang and make money doing illegal activities’ because he ‘doesn’t care’.[198] When asked during the hearing if this report is accurate, the Applicant does not recall stating this.
[197] Exhibit R1, 77.
[198] Ibid 166.
In a general sense, the Applicant’s convictions resulted in visa cancellation, rendering him an unlawful non-citizen within the meaning of s 14 of the Act. In the event of non-revocation, he would continue to be detained under s 189 of the Act until removed or granted a visa.[199] Because of the operation of s 501E of the Act, he would be prevented from applying for a visa, other than a Protection Visa or a Bridging R (Class WR) Visa, pursuant to reg 2.12AA of the Migration Regulations 1994 (Cth). There is no evidence that removal of the Applicant is not reasonably practicable, although how long this takes is uncertain because of choices he might make in the event of a non-revocation decision. This includes a possible appeal to the Federal Court, lodging a Protection Visa application, applying for the exercise of a non-compellable ministerial discretion,[200] or voluntary removal. If the Applicant did apply for a Protection Visa, but this was rejected, he would be on a pathway to removal as soon as reasonably practicable.[201] If he was found to be owed non-refoulement obligations, then s 197C(3) of the Act provides that s 198 does not require or authorise removal of a person for whom a protection finding is made.
[199] The Act (n 11) s 196.
[200] For example, The Act (n 11) s 195A or s 197AB; Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, 191 [16].
[201] The Act (n 11) s 198(2B).
Irrespective of future decisions yet to be made or options that might emerge, the Tribunal accepts that non-revocation would be a significant and adverse outcome for the Applicant, who has lived in Australia since the age of ten. Having identified some of the possibilities, however, the Tribunal is not required to engage in speculation or fact-finding about future events,[202] and respectfully adopts the reasoning in Ali:[203]
The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised – and was in fact exercised – by reference to the facts and circumstances then prevailing...
[202] BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199.
[203] Aliv Minister for Immigration and Border Protection [2018] FCA 650 [33].
In DOB18 v Minister for Home Affairs at [35],[204] Griffiths J reflected favourably on the reasoning in Ali and similarly cautioned against speculating about the course of future decision-making:
… In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making...
[204] DOB18 v Minister for Home Affairs [2018] FCA 1523 [35].

Tribunal findings: Legal consequences

It remains open to the Applicant to apply for a Protection Visa. Current evidence about past family gang involvement, and possible gang involvement by the Applicant if returned, are general and there is nothing to suggest this would be forced. In the absence of any persuasive claims regarding international non-refoulement obligations, and because none can be discerned from the evidence, the Tribunal gives this consideration neutral weight.

Extent of impediments if removed

Clause 9.2 (1) of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if 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), taking into account:
a)        The non-citizen’s age and health;

b)        Whether there are substantial language or cultural barriers; and

c)        Any social, medical and/or economic support available to them in that country.

Tribunal consideration: Extent of impediments if removed

The following was submitted on the Applicant’s behalf:
’42. The applicant accepts that New Zealand has comparable social welfare, health care, and support to Australia. The applicant is covered by the Returning Offenders (Management and Information) Act 2015 (NZL). The applicant will be subject to monitoring on return. The applicant may receive some assistance from a probation officer on return.
43. Nevertheless, the applicant is likely to face significant hurdles in New Zealand to establishing himself. The applicant has limited contacts in New Zealand having only resided there briefly in 2007. The applicant’s deficiencies in verbal and written comprehension are likely to affect his capacity to engage with service providers, source accommodation and find work. Dr Treeby’s report speaks to the difficulties the applicant can have engaging with supports. Those difficulties are compounded by the applicant’s relatively competent verbal fluency which gives the impression he does not have an intellectual disability. People who are supporting the applicant are not always aware he does not understand them (RB 628). The applicant also has mental health challenges that he fears may be exacerbated by separation from his mother and family (Applicant’s Statement, [52]).
44. The applicant, already burdened with these limitations, has limited support in New Zealand having not lived there since 2007. The applicant accepts he may have the support of [Ms TA] on return, although she herself has never lived in New Zealand. The applicant’s sister… and aunt in New Zealand, although they applicant is unsure if they could assist him (Applicant’s Statement, [51]).
45. The applicant will, without familial support, struggle to establish himself in New Zealand.’
(Errors in original. Footnotes removed.)
The Tribunal has considered a document tendered from the Department of Corrections in New Zealand titled: ‘Returning Offenders – Frequently Asked Questions’.[205] This sets out common questions and answers relating to New Zealand citizens who no longer hold a visa to remain in Australia and are subject to removal. It is uncontroversial that reintegrative support may be available to this category of persons under New Zealand legislation.[206]
[205] Exhibit A9.
[206] Returning Offenders (Management and Information) Act 2015 (NZ).
The Applicant stated in documentary submissions he has a current New Zealand passport but claims it was lost.[207] The Tribunal notes he held a travel document enabling him to travel to New Zealand on 8 June 2019.[208] There is no evidence he could not apply for and receive a replacement passport.
[207] Exhibit R1, 67, 166.
[208] Ibid 77.
The Applicant refers to a diagnosis of ‘mental health issues’ for which he takes medication.[209] There are multiple reports, however, to him attempting to hoard / divert Mitrazapine, which is an antidepressant with sleep-promoting properties. He has also been non-compliant in taking medication[210] and does not currently take any medication.
[209] Ibid 76.
[210] Exhibit R2, 154, 156-160, 212, 216.
The Court noted during sentencing a neuropsychological report from Dr Matt Treeby, which diagnosed the Applicant with a mild intellectual disability.[211] This is assessed as manifesting in difficulties relating to problem-solving and logical reasoning. Dr Treeby noted there is ‘no indication in medical records that [the Applicant] experienced neurological compromise or a brain injury’, but there is ‘some evidence of substance induced psychotic symptoms’ resulting from amphetamine use.[212] At the time of Mr Treeby’s report the Applicant was not taking any prescribed medications.
[211] Exhibit R1 51 [8], 27 [3].
[212] Ibid 625.
The Applicant claims to have been abstinent from illicit drugs and alcohol since his most recent imprisonment. He refers to a renewed focus on healthier living and regular exercise, albeit with reduced motivation in recent times. He aspires to an immediate return to work as a concreter if released in Australia. The Tribunal has considered records from IHMS,[213] including references to PTSD.[214] This includes the Applicant being ‘referred by AOD counsellor due to question of PTSD’; having a consultation with a psychiatrist on 21 November 2022, and file notations stating: ‘?PTSD; ‘features of PTSD’; and ‘psychoeducation provided re PTSD’.[215] The Applicant has claimed that he experiences ‘flash backs’ and ‘vivid dreams’, that his ‘body vibrates’, and he ‘loses control over his responses’.[216] He also claimed during this consultation that his drug use became a problem around the time of the stabbing incident. This conflicts with other evidence, however, that the Applicant’s drug use was a problem well before 2016.
[213] Ibid 523-623. IHMS provides primary and mental health care services within Australia’s immigration detention network.
[214] ASFIC, 4 [25]; Exhibit A1 [39].
[215] Exhibit R1, 526-528, 562.
[216] Ibid 531.
The Applicant has repeatedly declined to attend medical appointments in immigration detention, including with psychiatrists.[217] A psychiatrist noted at a May 2023 appointment the Applicant ‘presented as irritable and not wanting to talk about his stressors’.[218] On another occasion he failed to fast prior to surgery, causing it to be cancelled.[219]
[217] Exhibit R2, 151, 153, 155, 162-165, 167, 169-171, 173, 178, 182, 189-190, 192, 196, 198, 202, 211-212, 220, 230, 232, 234-236.
[218] Ibid 165, 188.
[219] Ibid 204-205.
The Applicant refers to the potential of getting involved with ‘gangs and more criminal activitys (sic)’ if returned to New Zealand.[220] The concerns he most ardently pressed during oral testimony, however, centre on being able to re-establish himself due to unfamiliarity with New Zealand and a lack of support. In his documentary evidence he referred to a sister and aunt in New Zealand, and a brother in the Cook Islands.[221] During the hearing however, he referred to a sibling and two aunts living in New Zealand, and another sibling and great-grandmother living in the Cook Islands. His mother’s evidence, earlier summarised, sheds further light on the extent of his family links overseas. The Applicant accepts there is the possibility of some reintegrative support in New Zealand for offenders returning from overseas. A custodial record dated 28 October 2021 notes the Applicant requested that his superannuation be provided to him if removed to New Zealand so that he can use it for a ‘financial base’.[222] During the hearing, however, he explained that he withdrew some superannuation under COVID-19 early release provisions and has been told he has no further savings. He disputes this and is following it up with his superannuation fund.
[220] Exhibit R1, 77.
[221] Ibid 73.
[222] Exhibit R1, 166-167.

Tribunal findings: Extent of impediments if removed

The Applicant arrived in Australia at the age of 10 and is currently 27. He did not advance any language or cultural barriers.
The Applicant referred to better opportunities for him in Australia. The requirement under the Direction, however, is to consider an applicant’s ability to establish themselves and maintain basic living standards ‘in the context of what is generally available to other citizens of that country,’ rather than by comparison with Australia. There is no evidence the Applicant would be treated differently to other New Zealand citizens when it comes to benefits like health, housing, and income support. He aspires to an immediate return to work as a concreter and there is no evidence his work qualifications would be treated any differently irrespective of whether he was released in Australia or New Zealand. It is accepted, however, that he does not have the same work connections in New Zealand.
The Tribunal accepts the Applicant was diagnosed with PTSD by a psychiatrist in immigration detention on 21 November 2022,[223] but has residual concerns about the inconsistencies between what he told IHMS staff about the stabbing underlying his PTSD, purported correlation with ‘problem’ drug use, [224] and contrasting evidence that his AOD abuse pre-dates this incident. The Tribunal is unpersuaded the Applicant’s PTSD, or mild intellectual disability, or any other mental health concerns are ‘likely to affect his capacity to engage with service providers, source accommodation and find work’.[225] It is noteworthy the Applicant has previously found work and accessed support in Australia. The Tribunal notes he has lived independently since leaving home at 13 and provided for his needs notwithstanding family estrangement. He has accessed support from YSAS and other organisations over many years. His difficulties instead centre on failing to meaningfully engage with supports rather than accessing them. Even if removal to New Zealand exacerbated the Applicant’s mental health, or he relapsed into drug use, or was unable to source assistance from family members in New Zealand or the Cook Islands, there is no evidence he would not have the same entitlement to healthcare, income, housing, or other support available to all New Zealand citizens, such as to constitute an impediment to removal.[226] He may also be able to access reintegrative support under New Zealand legislation for returnees in his circumstances.[227]
[223] Ibid 527.
[224] Ibid 531.
[225] ASFIC, 7 [43].
[226] GXXS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 468, [57], [60]–[62] (Derrington J).
[227] Pursuant to the Returning Offenders (Management and Information) Act 2015 (NZ).
The Applicant has some familiarity with New Zealand as an adult, having visited there most recently in 2019. He also has family members in New Zealand and the Cook Islands who may be able to extend some practical or emotional support. The extent of this is currently unknown given he is yet to ask. Ms TA may also be a source of emotional, practical, and perhaps financial support for the Applicant if she accompanies him. The Tribunal places less weight on this prospect, however, given the Applicant’s past treatment of a girlfriend who tried to help him adhere to a rehabilitative plan. Moreover, Ms TA would be concurrently trying to relocate her life to an unfamiliar country and there is no expert evidence regarding the state of her recovery after ceasing methamphetamine use about a year ago.
After living in Australia for most of his life, the Applicant would nevertheless be confronted by impediments in establishing himself. This includes because of his intellectual disability, unmet rehabilitative needs, criminal history, unfamiliarity with New Zealand, and uncertainty about whether he can access support from family or others in New Zealand. This may cause his mental health issues to worsen and relapse into AOD abuse and further crimes.
Despite the comparable nature of life in Australia and New Zealand, the Tribunal accepts that after living in Australia since the age of 10, the Applicant will encounter hardship if returned. On balance, this consideration weighs moderately in favour of revocation.

Impact on victims

Clause 9.3(1) of the Direction provides:
‘Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness’.
The Full Court of the Federal Court of Australia has held that regard must be had for any adverse impacts on victims should an offender either remain in Australia or be removed.[228] The interests of the Applicant’s mother were earlier considered under Strength, nature, and duration of ties. That said, she is also a victim of the Applicant’s violence. It is inferred from her evidence that she is has forgiven the Applicant for his past family violence against her and wants him to remain in Australia. She is willing to house him again, but the Applicant’s evidence is he intends living with Ms TA.
[228] Manebona vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 298 FCR 516, 534 [133]-[135] (Logan, Rangiah, Goodman JJ ).
There are references in the Applicant’s mother’s statement to missing the Applicant and hoping he can provide her with company and support with appointments. She also worries the Applicant might do ‘something stupid’ if returned to New Zealand and because of her medical condition and finances could not visit him. She is also concerned about a lack of family support if he is removed.
It is noteworthy the Applicant’s mother works full-time and is assisted by others with appointments – particularly her partner. There is no evidence the Applicant’s mother relies on the Applicant for financial or other practical support. It is accepted, however, she would be distressed if he was removed.
This consideration carries some weight in favour of revocation.

Additional considerations

No additional considerations were advanced by the parties and the Tribunal has not identified any ‘other considerations’ under the non-exhaustive list at cl 9(1) of the Direction.

CONCLUSION

Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ for revocation, the Tribunal has applied the Direction to the specific circumstances of his case. The Tribunal does not consider it necessary to depart from the guidance that greater weight ‘should generally be given’ to the primary considerations.
The Applicant has an extensive criminal history in Australia. His offending is persistent, very serious in totality, and has caused physical, psychological, or financial harm to multiple victims. These include strangers, family members, and girlfriends. His violence is not isolated or impulsive but repeated and increasingly serious. He continues to convey limited insight into his past crimes and his remorse is mostly concerned with the negative personal consequences of his past behaviour.
The Applicant has considerable unmet rehabilitative needs, including for addiction, anger, and emotional regulation. The Tribunal remains concerned about his poor motivation and continuing bad choices despite past reform opportunities. This includes persistent misconduct in custodial settings and the conditional nature of his willingness to take prescribed medication and continue with beneficial counselling.
The Tribunal does not accept the Applicant’s rehabilitative claims and is unpersuaded by the collective force of the protective factors he invokes. These are comparable to those of the past, which did not curb his polysubstance abuse and crimes. The Applicant does not convey a persuasive plan to advance his rehabilitative needs. His recidivism risk on current facts is at least moderate and unacceptable. The totality of his past conduct, including continuing misconduct in custodial settings, is such that the Australian community would expect the Government not to allow him to remain in Australia.
Despite living in Australia since he was 10 years’ old, the strength and nature of the Applicant’s community ties is limited. Only a small number of statements were provided from family members, Ms TA, and a former employer. There is no direct evidence regarding the interests of nieces and nephews. There is also minimal evidence about past positive contributions to the community. That said, the Tribunal accepts those who wrote supportive statements, particularly the Applicant’s mother, would be emotionally affected by a non-revocation decision. This would be a significant, adverse outcome for the Applicant who would be confronted by impediments in re-establishing himself in New Zealand after a lengthy period in custodial settings and without comparable support. This is complicated by his intellectual impairment, extensive criminal history, unfamiliarity with New Zealand’s bureaucratic requirements, and current lack of family or prosocial support. These impediments are not insurmountable, however, and the Tribunal considers he could re-establish himself and provide for his daily needs in the context of what is generally available to other New Zealand citizens. He may potentially be assisted in this regard with support from family members in New Zealand, Cook Islands, and Australia. Additional support may also be available from Ms TA and under New Zealand Government support arrangements for returnees in the Applicant’s circumstances.
Having weighed the relevant considerations individually and cumulatively, there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because three of the primary considerations (protection of the Australian community, family violence committed by the non-citizen, and expectations of the Australian community) substantially outweigh the countervailing considerations.
DECISION
It follows that the Tribunal affirms the reviewable decision.

I certify that the preceding 170 (one hundred and seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

……………[sgd]…………………….
Associate
Dated: 3 June 2024

Date of hearing:

14, 16, and 17 May 2024

Advocate for the Applicant:

Mr Mathew Kenneally

Solicitors for the Applicant

Hannan Tew Lawyers (Ms Emily Young)

Advocate for the Respondent:

Ms Laura Mills

Solicitors for the Respondent:

Minter Ellison Lawyers (Ms Felicidade Lay)

Date of hearing:	14, 16, and 17 May 2024
Advocate for the Applicant:	Mr Mathew Kenneally
Solicitors for the Applicant	Hannan Tew Lawyers (Ms Emily Young)
Advocate for the Respondent:	Ms Laura Mills
Solicitors for the Respondent:	Minter Ellison Lawyers (Ms Felicidade Lay)