Moananu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 2869

Moananu and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2869 (9 August 2022)
Division:GENERAL DIVISION
File Number(s): 2022/4173
Re:Saumalu Moananu
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Mr S Evans, Member
Date: 9 August 2022
Date of written reasons: 2 September 2022
Place:Sydney

The Tribunal decides that the reviewable decision, being the decision of a delegate of the Minister dated 18 May 2022 not revoke the mandatory cancellation of the Applicant’s visa, is affirmed.
.....................................[Sgd]...................................
Mr S Evans, Member
Catchwords
MIGRATION – visa cancellation under subsection 501(3A) of the Migration Act 1958 (Cth) – cancellation not revoked under subsection 501CA(4) – where the applicant has a substantial criminal record – where the applicant does not pass the character test – issue: is there another reason why the visa cancellation should be revoked - best interests of minor children - family violence – Direction no. 90 considered.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Suleiman and Minister for Immigration and Border Protection [2018] FCA 594
XXBN and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74
Secondary Materials
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Mr S Evans, Member
2 September 2022

Saumalu Moananu (the Applicant) seeks review of a decision of a delegate of the Minister for Immigration, Citizenship, and Multicultural Affairs (the Respondent) not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (the visa) pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act).
For the reasons which follow, the reviewable decision will be affirmed
introduction
The Applicant is a is a 44 year old citizen of New Zealand who immigrated to Australia along with his de-facto wife, ER, on 2 July 2005 when he was 27 years old.
On 2 July 2021 the Applicant was convicted for assaults occasioning bodily harm – domestic violence offence, for which he was sentenced to a period of 12 months imprisonment. On 12 August 2021 the Applicant’s visa was cancelled under subsection 501(3A) of the Act as he did not pass the character test owing to having a ‘substantial criminal record’ (the mandatory cancellation decision).
On 17 August 2021 the Applicant made representations seeking revocation of the mandatory cancellation decision, as well as providing additional documents in support of his request for revocation.
On 18 May 2022 a delegate of the Minister decided under subsection 501CA(4) of the Act not to revoke the mandatory cancellation of the visa (the non-revocation decision). On 25 May 2022 the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.
Issue to be determined
The issue for the Tribunal to consider is whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Act.
Subparagraph 501CA(4)(b) provides that the Tribunal may revoke the original decision if it is satisfied:
(a)that the Applicant passes the character test; or
(b)that there is another reason why the original decision should be revoked.
Section 501(6)(a) provides that a person does not pass the character test defined in s501 if they have a ‘substantial criminal record’. Section 501(7)(c) provides that a person who has been sentenced to a term of imprisonment of 12 months or more has a substantial criminal record.
As the Applicant was sentenced to 12 months imprisonment on 2 July 2021 I am satisfied he does not pass the character test for the purpose of section 501CA(4)(b)(i) of the Act.
As he does not pass the character test, the sole issue for determination is whether the Tribunal can be satisfied that there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked.
Relevant law and Ministerial direction no. 90
Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test.
Paragraph 501(6)(a) of the Act provides that a person does not pass the character test if the person has a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 90).
Paragraph 5.2 of Direction 90 provides principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation of a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be considered ‘secondary’ or of inherently less importance than primary considerations, and in certain circumstances one or more other considerations may outweigh primary considerations.[1]
[1] Suleiman and Minister for Immigration and Border Protection [2018] FCA 594, [23] per Colvin J
The primary considerations in the Direction are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) family violence committed by the non-citizen;
(3) best interests of minor children in Australia affected by the decision; and
(4) expectations of the Australian Community.
The other considerations set out in Direction 90 which must be taken into account where relevant include but are not limited to:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community.
Evidence
The Applicant’s evidence
The following account is based on oral evidence and written submissions of the Applicant.[2]
[2] G15d/141-148
The Applicant was born in Samoa in July 1977. He was abandoned by his parents and raised by his adoptive grandmother. When his grandmother died in 1986 he was treated poorly by other family members who sent him to work farming, hunting or fishing. He was often absent from school and his education suffered, which affected his ability to read a write. He was not allowed to go to bed until all the chores to which he had been assigned were complete and often did not get to sleep until late at night.
At age 12 the Applicant migrated to New Zealand where he was granted citizenship by descent. In New Zealand his adopted father required him to help him complete his work. The Applicant was woken early and worked until late and was treated ‘like a slave’.
At school the Applicant was bullied by his peers on account of his poor English skills and difficulties reading and writing.
In 2004 the Applicant commenced a relationship with his de-facto partner, ER. ER and the Applicant migrated to Australia the following year. They have remained together since they first met and now have eight children together. The Applicant loves ER who ‘brought him out of the darkness’ that ‘being abandoned by his parents’ had caused.
The Applicant began using methamphetamine or ‘ice’ in 2018. In 2019 the Applicant and ER experienced a period of financial hardship during which the family’s car was repossessed. The loss of their vehicle made life much harder. The Applicant and ER began to have relationship difficulties as a consequence of their financial challenges and the Applicant’s drug use. These pressures led to an increase in the Applicant’s drug use.
The Applicant believes that the feelings of ‘darkness and anger’ he experiences originate from his being ‘abandoned’ by his parents and ‘mistreated by his adoptive family’ and ultimately led to his offending.
The Applicant claims to have maintained steady employment in Australia from 2005 until August 2018 when ER was offered full time employment and the Applicant became a ‘stay-at-home dad’. He writes in a statement dated 11 May 2022:
I held regular work in Australia from 2005 until 2018 while [ER] was a stay-at home-mum. In about August 2018 I became a stay-at-home dad as [ER] was offered a full-time permanent position at her work place. To be able to make the most of this opportunity, which we thought would provide our family with financial security, I took a step back with my career so that I could tend to the responsibilities at home, especially those demands with the large family that we had. [ER] role required her to work 12 hour shifts. As such, I stayed home to care for our children and perform the home duties.[3]
[3] G15d/141
Evidence of ER, the Applicant’s partner
ER has provided an undated written statement in support of the Applicant and gave evidence at the hearing.[4] ER confirmed that she has been in a relationship with the Applicant for 18 years. At the time of writing they had seven children together and she was pregnant with her eighth and youngest child, OA.
[4] G16a/150-152
ER was the victim of the assaults occasioning bodily harm – domestic violence offence for which the Applicant was convicted and imprisoned in July 2021. She believes that the Applicant’s mental health has played a role in his offending and notes that the day of the offending in 2020 and the period that followed has been some of the most difficult in their time together.
ER believes that the Applicant is remorseful for his offending and also that his experiences growing up were a source of great distress for him. She believes that the Applicant’s mental health deteriorated following the passing of his step-mother in 2009. He started using drugs to cope with his feelings and the problems he faced after losing ‘the only person he had left’. She writes that the Applicant’s step-mother played a ‘huge role in his life’ and helped him ‘become the man he is today’. [5]
[5] G16a/150
She writes that the Applicant has ‘always had trouble … expressing his feelings’. She believes this is due to the trauma he experienced when he was adopted and migrating to New Zealand where he was ‘enslaved by the man who adopted him’ instead of providing him a better life than he had in Samoa.[6]
[6] G16a/150
ER confirms that the Applicant had responsibility for their children and his nieces and nephews whilst her she, her sisters and their partners went to work.
ER gave evidence about the Applicant’s drug use at the hearing. She estimated that the Applicant spent $300 each week out of the family budget to sustain his drug use. Asked if she could afford to spend money on drugs for the Applicant, she said she could not..
Asked if she had ever asked the Applicant to stop using drugs, she said that she had done so. The Applicant told ER that he would stop but needed more time to do so but ultimately, he did not stop using drugs until he went to jail.
ER confirmed that the Applicant has difficulty managing his anger. After being taken to specific incidents of domestic violence recorded by police, ER conceded that the Applicant had hit her on two occasions, but gave evidence it was not a regular occurrence, telling the Tribunal:
Yes, he doesn’t hit me, like, he prefers to hit, like, to damage the house instead. Every time we argue he’s like, it’s not worth giving me a hiding. It’s worth damaging what he wants to instead of hitting me.
ER is confident that the Applicant will not resume taking drugs should he return to the community. She said that she loves the Applicant and wishes to support him and be there for him so he can be a better man.
ER gave evidence that her sister Maria and the Applicant did not get along. In Maria’s opinion, the Applicant needed to stop smoking ice and stop going to the places where he gets ice and ‘focus on his kids’. Asked if Maria had witnessed instances of the Applicant being aggressive, ER confirmed that she had, that Maria was aware of the Applicant’s anger issues and was trying to protect her. Asked if Maria was worried about her and her safety, ER answered ‘yes’.
When asked if she would be prepared to go to New Zealand with the Applicant should the cancellation of his visa not be revoked, ER confirmed that she would stay in Australia with her extended family. She told the Tribunal there is nothing for her in New Zealand.
Both ER and the Applicant regularly attend church and the Applicant gives back to the community by mowing lawns for free, helping at the church and providing handyman services.[7] ER and the Applicant also take people into their home so they have somewhere to stay.
[7] G16i/167
Character references and statements
Statements of support for the Applicant speak to his remorse and the role that his mental health played in his drug use and offending.
Rebecca Seumanu, pastor at Arise and Shine Outreach
Ms Seumanu’s character reference was also written on behalf of her husband. She has known the Applicant and his family for over six years and has formed a strong bond with them through church activities and prayer. She is aware of the Applicant’s offending and understands he is remorseful. She has experienced the Applicant as a ‘hands on’ person in their congregation who has helped others and gives back to the community doing odd jobs and the like.[8]
[8] G16i/167
Mika Matuu and Itagia Matuu, the Applicant’s parents-in-law
Mr Mika Matuu’s character reference was also written on behalf of his wife, Itagia Matuu. He has known the Applicant for 18 years, and confirms that when he and his family migrated to Australia in 2009, the Applicant and ER accommodated them in their home ‘until we were able to get on our feet’. He notes the Applicant continued to support them despite having his own challenges including the death of his step-mother, who he was very close to. The Applicant assists Mr Matuu when he is ill and his wife is away at work. He confirms that the Applicant being in detention has taken a toll on his daughter ER, who now has to take on the role of caretaker of his grandchildren while working full time.[9]
[9] G16h/165-166
Maria Matuu, the Applicant’s sister-in-law
Ms Matuu is ER’s sister and she has known the Applicant for 18 years. Consistent with her father’s statement, she writes that when her family initially moved to Australia in 2009, the Applicant and ER accommodated them in their own home for more than two years until they were able to find their own place. She also states that the Applicant works as a handyman to give back to the community, and although she is aware of his drug problems and offending, acknowledges his remorse and the steps he has taken to better himself.[10]
[10] G16g/163-164
Tina Mahe, the Applicant’s sister-in-law
Ms Mahe is also ER’s sister and confirms that she has known the Applicant for 18 years. The Applicant has taken charge of taking her son to school as she and her husband both work. Despite the problems the Applicant has experienced, Ms Mahe trusts him to care for her son, who she confirms misses the Applicant. Ms Mahe also confirms that the Applicant has a strong bond with her father and her partner.[11]
[11] G16j/169-170
Lika Mahe, the Applicant’s brother in-law
Mr Mahe has known the Applicant for 11 years. He sees the Applicant on a regular basis and their children often play together. He confirms the Applicant attends church regularly and is heavily involved in the community. Until his imprisonment, the Applicant cared for his son while he and Ms Mahe were at work. He believes that his son will be severely impacted should the Applicant be forced to leave Australia. Mr Mahe is aware of the Applicant’s mental health problems which he believes are the cause of his drug use.[12]
[12] G16d/157-158
Loimata Precious Alalatoa, the Applicant’s cousin
Ms Alalatoa writes that the Applicant’s partner ER and his children rely on him and look up to him. In conversations with Ms Alalatoa, the Applicant opened up about his mental health issues, his fears and past traumas. She believes the Applicant has issues with self-expression due to mental health issues and his upbringing.[13]
[13] G16e/159-160
Maria Hunt, family friend of Applicant

Maria Hunt has known the Applicant for seven years and currently resides with ER and the Applicant’s children, having been taken in by them when she and her children were on the verge of homelessness. Although she is aware of the Applicant’s drug use, she writes that he ‘never posed a threat to my children’ and described the Applicant as a driven caretaker of his children. She confirms that ER is struggling to care for her children in the Applicant’s absence and believes his leaving Australia would be detrimental to them.[14]
Primary consideration 1 – protection of the australian community from criminal or other serious conduct
[14] G16f/161-162
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, Direction 90 requires decision-makers to have regard to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
The Applicant’s offending is set out in a National Criminal History Check of 30 August 2021.[15]
[15] G6/35
On 9 August 2005 the Applicant appeared in the Burwood Local Court where he was convicted of Possess/attempt to prescribed restricted substance. On 22 December 2005 the Applicant again appeared in the Burwood Local Court where he was convicted of Resist officer in execution of duty – T2 and Use offensive language in/near public place/school for which he was fined.
On 8 June 2006 the Applicant appeared in the Burwood Local Court where he was fined and issued a 12 month s9 bond for Destroy or damage property.
On 24 September 2008 the Applicant appeared in the Penrith Local Court having been charged with a variety of offences including Drive with high range PCA, assault police officer in execution of duty w/o abh and Stalk/intimidate intend fear physical/mental harm. In addition to being fined the Applicant was sentenced to 9 months imprisonment suspended upon entering a s12 bond and completion of 200 hours of community service.
The circumstances of the offending are set out in a police facts sheet.[16] During the hearing the Applicant was taken to the police facts sheet relating to the incident which he agreed was an accurate account of events.
[16] ST/114-118
At 1:55am on 5 August 2008 the Applicant drove his vehicle into the driveway of a unit complex where he stopped the vehicle and revved the engine excessively. He exited the vehicle and screamed abuse. Residents called the police. He returned to the vehicle and when police arrived he refused to exit his vehicle. Police had to physically open the driver’s door and lift him out of the car.
He told police he had consumed 20 beers. He was asked to take a breath test on three occasions, which he refused. The Applicant was reported to be very aggressive towards police and had to be physically restrained in order to place him in a vehicle so he could be taken to the station.
He was later released from custody and returned home about 6am. He walked down the driveway of the complainant who had called the police earlier that morning and stopped in front of their townhouse and yelled words to the effect of ‘how dare you call the police? I’ll kill you and cut you like a pig’. He took two beer bottles from the recycling bin and threw them at the driveway. Though the bottles did not smash, police were called to attend and the Applicant was handcuffed and taken to the station.[17]
[17] ST/122
The Applicant gave evidence that he should have known better than to return to the apartment. By way of explanation, he told the Tribunal that the residents of the units had made a lot of noise and were known to fight in the driveway which woke his child and disrupted his sleep at a time when he was working 12 hour shifts.
On 1 January 2009 the Applicant was stopped by police for random breath testing and asked to produce his driver’s licence. He produced his New Zealand driver’s licence and police identified that he was disqualified from driving from 5 August 2008 through to 5 August 2010.[18] As a consequence the convictions from 24 September 2008 were called-up on 3 February 2009. The Applicant was sentenced to 6 months imprisonment, but was released after about 6 weeks on appeal.[19] He was also subsequently required to complete an alcohol rehabilitation course.[20]
[18] ST/127
[19] ST/125
[20] G6/37
On 30 October 2019 the Applicant appeared in the Ipswich Magistrates Court where he was convicted of Contravene direction or requirement and fined $150. The details are set out on a Police Court Brief.[21] The Applicant was found with a quantity of cannabis in his possession and was given an opportunity to attend a drug diversion program. Arrangements were made and accepted by the Applicant but he failed to attend. When asked by police why he did not attend the drug diversion program as required he stated that there was no excuse other than that he had forgotten. At the hearing the Applicant accepted this was an accurate account of events but noted the cannabis found in his possession was the equivalent of ‘one cigarette’ in his pocket which he had forgotten was there.
[21] ST/38
On 30 January 2020 the Applicant appeared in the Ipswich Magistrates Court where he was fined for Contravene direction or requirement. He appeared again in the Ipswich Magistrates Court on 30 January 2020 and was fined for Unauthorised dealing with shop goods following an incident where he did not pay for fuel after telling the cashier he did not have his wallet but would return to pay. The Applicant reportedly explained to police that he did not have money to pay for the fuel but needed to pick up his partner.[22]
[22] ST/60
On 7 September 2020 the Applicant appeared in the Ipswich Magistrates Court where he was convicted of Contravention of police protection notice.[23] He was fined $500 with no conviction recorded.[24]
[23] ST/41
[24] G6/36
The details of the offence are set out in a Police Court Brief.[25] The Applicant was served with a police protection notice at 6pm on 6 September 2020. The notice stipulated that he must be of good behaviour towards the aggrieved, ER, and was prohibited from approaching or attempting to enter within 50 metres of the family residence. He was at the time staying with his brother elsewhere.
[25] ST/42
At 10:15pm the day the police protection notice was issued the Applicant drove back to the family residence in contravention of the order. He ‘knocked on the front door pleading with [ER] to allow him inside and see his children’. He was not let in and the Applicant ‘punched the front door in apparent anger continuing to plead to be allowed in’. Family members called the police. When police later caught up with the Applicant he was compliant and acknowledged he had done the wrong thing, telling them he only went to the address to ‘check on his kids’.[26]
[26] ST/42
When asked about this offence the Applicant told the Tribunal that he returned to the family home in order to apologise to ER and to see his children.
On 7 September 2020 the Applicant was present in the Ipswich Magistrates Court when a temporary protection order was issued preventing him, amongst other things, from being within 100 metres of the home where ER lived.[27]
[27] ST/46
At about 5:45pm that day police responded to a domestic disturbance at the family home. The Applicant was found in the hallway and arrested. Police spoke to ER who confirmed that the Applicant had returned to the address at 5:15pm and was upset about an argument he had with ER’s brother. The Applicant entered the house and ‘yelled and screamed’ at ER and ‘picked up a washing basket full of clothes and thrown it against a wall, causing the basket to break and clothes spill out onto the floor’. The Applicant has ‘then hit two internal doors, putting holes into the doors’. ER contacted her family to collect the children ‘who were scared and crying’.[28]
[28] ST/46
On 8 September 2020 the Applicant appeared in the Ipswich Magistrates Court and was convicted of Contravention of domestic violence order (aggravated offence) and sentenced to 9 months’ probation.[29]
[29] ST/1
On 9 March 2021 the Applicant again appeared in the Ipswich Magistrates Court where he was convicted of Unauthorised dealing with shop goods (maximum $150) and Wilful damage for which he was fined. The first conviction related to a failure to pay for fuel on 22 January 2021. The Applicant explained that the issue arose as he had a petrol voucher which he found out was not valid at that particular service station after he had filled up his vehicle with fuel.[30]
[30] ST/64
The wilful damage charge related to an incident on 15 February 2021 following an altercation between ‘a few kids’. The Applicant and one of the children’s older brothers became involved in a heated discussion over the altercation. During the conversation, one of the children started filming the interaction, and the Applicant has asked him to stop. The Applicant has then approached the victim and removed the phone from his hands and smashed the phone on the ground. The Applicant told police that he believed the victim was still filming him when he took the phone and smashed it.[31]
[31] ST/34
The Applicant expressed regret for the incident at the hearing and in a previous statement explained that he was seeking to protect his children, writing in part:
I understand the offending involved a victim who was a child. For context, I was somewhat provoked as the victim and his friends had been bullying my child in the playground, to the point where my child fell face first to the ground which caused some bleeding. The victim had been filming his group of friends pushing my child (and other children in the park, at random) off the playground swing then posting the reactions to Tiktok and YouTube. My other children who were also playing at the park at the time had asked them to stop and then became so upset that they came home, which was nearby to the park, and called me to talk to the children. I then went down to the park and the incident ensued. I understand that I should not have treated the child or their property like I did, but never intended to cause harm or fear to the child. I just wanted them to stop the behaviour that was hurting my child.[32]
[32] G15d/142
The cancellation offence
On 2 July 2021 the Applicant appeared in the Ipswich Magistrates Court following an incident that occurred on 18 May 2021. He was convicted by the Court of Assaults occasioning bodily harm domestic violence offence, Wilful damage domestic violence offence, Contravention of domestic violence order (aggravated offence) and received an aggregate sentence of 17 months imprisonment.
The details of the offending are set out in the police court brief.[33] On 18 May 2021 the police were called by a member of the public to a disturbance outside a general store during which the Applicant was ‘shouting aggressively’ at ER. The Applicant is reported to have driven from the store in an ‘aggressive and erratic’ manner with ER and the children in the vehicle. Police were en route to ER’s address when they received a call from ER’s sister reporting that ER had been assaulted by the Applicant. It was reported that during the assault the Applicant had snatched ER’s mobile phone from her and thrown it to the ground causing it to break and become inoperable after she told him she was going to call the police.
[33] ST/50-55
When police officers attended ER’s home and spoke to her they observed she ‘had blood spattered across the front of her shirt’. ER also had a cut to her lower lip and dried blood around her mouth. She told police that following the altercation at the store the argument had continued at home. The Applicant was very aggressive and when ER had retreated to the garage he had followed her and punched her with a closed fist a number of times in the face, causing the injury observed by police.[34]
[34] ST/54
ER told police the altercation began after the Applicant lost his temper, having been asked to go to the shop to buy some food for the children’s lunches. This escalated into further aggression when one of the children returned from the shop and apparently did not provide the correct change.[35]
[35] ST/54
In sentencing the Applicant, Magistrate Payne stated that the offending was ‘inexcusable because it involves physical violence on a vulnerable victim in her own residence where there are seven children – your own children- who potentially witness this kind of conduct on your behalf’.[36] Magistrate Payne went on to observe:
You are a grown man, and it is time that you take responsibility for your actions and your anger management, and I encourage you, through this sentence, to seek appropriate assistance to get on top of your anger issues. The way you conduct yourself is the way I would expect a seven year old child to conduct themselves in a playground, not a grown man in a society. Society expects more from adult men in the community, okay? And it is time to step up and be responsible. I take those personal circumstances into account. [37]
[36] G8/46
[37] G8/47
Driving record
The Applicant has committed numerous driving offences in addition to the Drive with high range PCA offence for which he was convicted in September 2008. Notably on 11 July 2020 he was fined for exceeding the speed limit by more than 30 km/h[38] and shortly after was fined for exceeding the speed limit by between 20 and 30 km/h on 21 July 2020.[39]
[38] ST/70
[39] ST/69
Immigration
The Respondent has also identified that the Applicant did not declare his prior criminal offending on incoming passenger cards on three occasions in 2005, 2007 and 2009. He claims not have known he had a criminal conviction in New Zealand prior to his arrival in Australia and that his difficulties reading meant that he did not understand the question ‘do you have any criminal convictions?’ properly in 2005 and 2007.[40] He is unsure why he marked ‘no’ where asked if he had any criminal convictions on his 2009 incoming passenger card. [41]
[40] G14/97-98
[41] G15d/144
Whilst I give some weight to the failure to declare his convictions, I note that the offending in New Zealand was minor and do not take into account the failure to declare his conviction in 2005.[42]
[42] G5/20
Conclusion
The Applicant’s offending is very serious. It includes violent crimes against women and acts of family violence. The Applicant’s criminal record is lengthy and he began offending shortly after his arrival in Australia in 2005. His offending has regularly involved acts of aggression and has been of increasing seriousness, which is reflected in the sentences imposed upon him. In resisting and assaulting police in the execution of their duty he has committed offences against public officials in the course of their duties, which are also considered to be particularly serious.
The Applicant’s broader conduct indicates a lack of respect for the law, particularly his unwillingness or inability to abide by the conditions of a police protection notice and domestic violence orders.
For these reasons, I find the Applicant’s offending is extremely serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Subparagraph 8.1.2(1) of Direction 90 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases. Subparagraph 8.1.2(2) provides that in assessing the risk posed by a non-citizen to the Australian community, I should consider, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending.
On the basis of his past offending, should the Applicant reoffend there is a very serious risk of psychological and physical harm to ER and psychological harm to their eight children. There is also a risk to other members of the community should the Applicant commit further driving related offences.
The Respondent contends that there is a real risk that the Applicant will engage in further criminal or other serious conduct.
In relation to the risk of reoffending, ER writes that the Applicant has agreed to counselling and ‘is willing to do anything to do things differently and to resolve his issues’.[43]
[43] G16a/151
ER gave evidence that she is prepared to support the Applicant to address his depression, anger and mental health and believes ‘it is time for us to come together and start helping [the Applicant] out more, because we are all he’s got and it’s not easy living life with all these issues’.
For his part, the Applicant contends he is genuinely remorseful for his offending and that he appreciates the impact of his past conduct, particularly on his family.
The Applicant’s offending stopped for a significant period following his completion of a court ordered alcohol rehabilitation course in 2009. He told the Tribunal that the course was beneficial and gave participants an opportunity to talk about the past and he learnt a lesson about control. He attended weekly for two months and stopped drinking alcohol completely shortly after.
Though he ceased drinking alcohol, he continued to use cannabis, and subsequently began using methamphetamine. In his May 2022 statement, he writes about his use of methamphetamine, which he said he began using ‘at the end of 2018’. He ‘found it to be a release for the pressures [he] experienced at the time and which had been cumulating [sic] over the years since [his] childhood’.[44] His contention that his methamphetamine use was an attempt to deal with his depression or the traumas of his past is supported by the evidence of others including ER.
[44] G15d/142
While the Applicant’s claim that his use of methamphetamine was an attempt to self-medicate is supported by anecdotal accounts, there is an absence of medical or clinical evidence in relation to either his drug use or mental health. The Applicant believes that he suffers from depression, and recalls that his brother-in-law noticed a change in him in 2019 which he now believes to be a ‘general decline in mental health, possibly depression’. He concedes, however, that he has never been diagnosed with the condition.
Although he is committed to not ‘fall back into the pattern of behaviour that was a result of poor anger management and drug use’[45] the Applicant has undertaken limited rehabilitation. In part he attributes this to lack of opportunity whilst in prison and the impact of COVID-19 restrictions on course availability. His difficulty with reading and writing also made participation in online programs challenging. As of May 2022, he was undertaking a Smart Recovery Alcohol and Drug course, which he claims had taught him about the impact of his drug use on himself and his loved ones. He had also joined a White Ribbon Domestic Violence course and completed an anger management course.
[45] G15d/143
Queensland Corrective Services records from the Applicant’s time in prison are also before the Tribunal. A Benchmark Assessment dated 11 August 2021 states that the Applicant denied any concerns about his mental health but reported he was suffering from depression which he related to his domestic violence offending.[46]
[46] ST/286

Detention centre health records indicate that the Applicant has regularly attended mental health counselling from September 2021 to March 2022, which allowed the Applicant to examine the drivers of his anger issues, his drug use and the impact his substance abuse has had on his family. The counselling he has undertaken whilst in detention has helped him appreciate that he was a person who did not trust people and he can now open up and accept the views of other people. [47] He claims to have learnt how to control his anger and to turn it into rational action. His new reaction is to find an alternative, peaceful way to solve problems.[48]
[47] IHMS Records, 8 October 2021
[48] G15s/143
The Applicant writes that he understands that his drug use ‘played a big part of [his] domestic violence offending because [he] had no history of domestic violence offending prior to using drugs’.[49] This is supported by the evidence of ER who stated the Applicant’s domestic violence offending started when he began using methamphetamine and that he is only violent when using drugs.
[49] G15d/143
When asked how he could be sure that he will not take drugs or act violently in the future, the Applicant said that being away from his family and children for 13 months had been difficult and the courses he had undertaken had helped him control his anger. He notes that the lessons he learnt during 2009 alcohol rehabilitation course enabled him to stop drinking alcohol, was extremely beneficial and contributed to a period of nearly 10 years where he did not offend.
Asked about the incident which occurred on 6 September 2020, the Applicant acknowledged striking ER. He said that looking back it was because he had little sleep, was tired from work and found it hard to control himself. When asked if he was working, he said he had been doing things at home and had smoked ice the night before, which made him tired and the ‘come down’ was very hard.
The Applicant also acknowledged that he had a propensity to become jealous and controlling of ER. He explained that this was in part due to the control that ER’s sister Maria has over ER and his family. He said that Maria has told ER to kick the Applicant out of the house and he believes she was trying to break up their family. Asked to provide further details the Applicant told the Tribunal that he had long been aware that Maria did not like him and ‘was a person of two faces’. He said that he found out by reading ER’s text messages that Maria had been telling his wife he was a bad person.
Asked if it was possible that Maria was seeking to protect her sister whilst he was using drugs he agreed that she had an obligation to help her sister, but he believed she had ‘gone too far’. She was, he said, trying to control his family and how it is run. He has tried to share his concerns with ER, suggesting that Maria should stop interfering with their family, but she would not listen, and he became angry as a result.
Asked if on reflection he wished he had handled the situation differently, the Applicant said he wished he had taken a more peaceful course of action, sitting Maria down with ER and telling her to leave the family alone as ER is his wife and he is her husband.
Conclusion as to the protection of the Australian community
I accept the Applicant’s remorse for his offending is genuine. It is apparent from his evidence that he has been chastened by his imprisonment and having visa cancelled. He acknowledges that on occasion he has let his anger ‘get the better of him’. His evidence makes clear he appreciates that his offending has led him to face the very real prospect of being separated from his family. Consequentially, he has taken the opportunity to reflect on his actions and it is apparent he deeply regrets the impact it has had on others, his partner and children in particular.
Making the connection between his current challenges, his difficult upbringing, the passing of his step-mother in 2009 and mental health issues indicates that the Applicant has reflected on his offending and sought to understand how the factors above caused his actions. I accept this shows regret and a desire to reform to prevent future offending.
Both the Applicant and ER identify the passing of the Applicant’s step-mother in 2009 as a detrimental turning point in his mental health. However, this raises the question as to why he did not seek treatment in the period between 2009 and 2018, when he began to self-medicate with methamphetamine. It also raises the question as to why he began using methamphetamine in 2018 when his mental health issues began in 2009.
Whilst I accept the Applicant had a difficult upbringing, I do not find it to be a sufficient or complete explanation for his offending and other conduct. As Magistrate Payne identified in 2021, the Applicant is an adult. His first recorded offence in Australia occurred when he was 27 of age and just three weeks after he first arrived in Australia. A court ordered alcohol program appears to have been instrumental in the Applicant not offending between 2009 and 2018. After he commenced taking methamphetamine in 2018, his offending rapidly escalated in frequency and seriousness. The harm done to others, notably his partner and young children was obvious and sustained, but he resisted attempts by ER and his extended family to have him cease using drugs. In spite of the damage, regular police interactions and court appearances, there is no indication that he sought help to stop but continued to allocate up to $400 a week from his family’s already limited budget to sustain his addiction.
This sequence of events attests to the strength of his addiction and highlights the need for intensive support and rehabilitation if he is to reduce the risk of further substance abuse in the future. Doing so will be essential and the Applicant acknowledges abstaining from further drug use will be key to his not reoffending.
However, the Applicant appears not to have sought or received treatment for his mental health and drug addiction until after he was imprisoned in 2021. Detention centre records indicate he was attempting to have a psychiatric report conducted in October 2021,[50] but in total there is a dearth of independent or medical information in relation to his progress and any requirements for future or ongoing treatment. It is also of some concern that clinical records from immigration detention state that as recently as 11 February 2022 the Applicant did not want medication or counselling but would ask for it if he needed it.[51] I note, however, that as of 24 March 2022 he was taking Mirtazapine to aid sleep and manage anxiety.[52]
[50] Applicant’s IHMS Records, p 48
[51] Applicant’s IHMS Records, p 48
[52] Applicant’s IHMS Records, p 37-38
Though the Applicant has the stated support of his family, notably ER, his family was present throughout the period in which he was offending. After the Applicant began using methamphetamine, ER and the Applicant’s brother-in-law encouraged him to stop without success. ER’s sister Maria had gone so far as to encourage ER to leave the Applicant out of concern for her safety. When the Applicant was aware of this, rather than reflecting on and addressing his own issues, he instead appears to have responded with resentment towards Maria. Although this is entirely understandable in the context of an active drug addiction, it nonetheless points to a refusal by the Applicant to confront the problems which led to his present predicament.
The Applicant’s evidence demonstrates an appreciation that he is quick to anger and it is his responsibility to keep his anger in check. He has not taken drugs since his imprisonment in September 2021, which provides him clarity and a strong basis for future recovery and self-improvement. However, in the context of his quite extensive offending history, unresolved family issues and poorly treated mental health issues there remains a very real risk that the Applicant will reoffend without comprehensive and ongoing support addressing all the factors which the Applicant has identified as contributing to his offending. This is particularly so given he has in the past proven resistant to pressure from his family and prioritised his drug use to their detriment. Even taking into account the treatment he has received to date including the courses and counselling, there is significant uncertainty as to his prospects of rehabilitation.
Having regard to the seriousness of the Applicant’s offending, the factors listed in the Direction and the protective factors which I have identified, this primary consideration weighs heavily against revocation of the cancellation decision.
PRIMARY CONSIDERATION 2 - Family violence committed by the applicant
The second primary consideration is whether the conduct engaged in by the Applicant constituted family violence. Direction 90 subparagraph 8.2(3)(a) to 8.2(3)(d) provides that in considering the seriousness of the family violence engaged in by the non-citizen, factors such as the frequency of the conduct, any trend of increasing seriousness, the cumulative effect of repeated acts of family violence, rehabilitation achieved and whether the non-citizen has reoffended since being formally warned are relevant factors.
Family violence is defined in Part 4 of Direction 90 to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
The Applicant has been convicted of serious domestic violence offences and the Direction requires that these offences must be considered extremely serious. The domestic violence offences are set out above and range in seriousness from Contravention of domestic violence order (aggravated offence) to the July 2021 conviction for Assaults occasioning bodily harm domestic violence offence.
ER gave evidence in support of the Applicant and was asked about some specific incidents which appeared in police facts sheets. She was asked about a report dated 28 June 2019 in which it was recorded that a real estate agent attended the Applicant’s home to perform an inspection on the property and had concerns for the welfare of ER, who is referred to as the ‘adult female occupant' or ‘the aggrieved’ in the following excerpt:’[53]
Police took up with the occupants of the address and separated both parties. The aggrieved laughed at Police when they questioned her in relation to the property damage and allegations of domestic violence. The aggrieved stated the damage was caused by her and her husband moving furniture into the house and that they had reported this to real-estate when they attended an inspection earlier that day. The [Applicant] gave a version consistent with the aggrieved. Both parties denied any domestic violence physical or otherwise occurring recently or in the past. Police took up with the informant who stated that during a routine rental house inspection the aggrieved appeared very timid when in the presence of the [Applicant]. The informant has challenged the aggrieved's version about the damage stating that it appears to be caused by a person forcing entry into the room to which [ER] has nodded and started crying.[54]
[53] ST/7
[54] ST/7
ER was asked about this by the Respondent’s representative:
Respondents’ representative: I’m not going to go through all of this but there are a couple of records that I think it would be helpful to ask you about. One of those occurs in June 2019 and as I understand it, this is a day where you have a real estate agent who attends to do an inspection of the property that you were living at the time which I think may have been in Logan. Do you remember that on that particular day that there was some damage to parts of the house and the police attended and asked what the cause of the damage was. Do you have any recollection of this?
ER: Well, the damage was – I can’t really say. Yes, I remember him coming around to the house and there was nothing going on at that time.
Respondent’s representative: Yes and I think if I remember correctly, Mr Moananu’s evidence was to the effect that some of the damage to the house would have been due to moving furniture and the like but as I understood his evidence, he did otherwise accept that, you know, there were times when he would – when he got angry that he would damage the home, for example, punching the wall and things like that?
ER:Yes.
Respondent’s representative: Is that right? In your experience, you know, did you see Mr Moananu cause damage to your property by, for example, hitting it?
ER: Yes, when he’s angry.
Respondent’s representative: Yes and how – I mean, I appreciate this is really difficult – how many times do you think you would have seen Mr Moananu sort of damage the property when he was angry?
ER: More than I think 10 times.
Respondent’s representative: Sure?‑‑‑
ER: When he’s really, really angry, yes.
ER confirmed that the Applicant did not use drugs in front of the children, and that the Applicant has never committed acts of domestic violence against the children. Asked if her children had witnessed the Applicant being aggressive or violent towards her she told the Tribunal that his aggression and violence was ‘always against’ her but that ‘his kids know about it’ and ‘try and calm him down’. She said that they tell him to stop and ‘that’s when he stops. I know he loves his kids’. I also note that following his conviction in 2021, ER gave the Applicant written consent to contact herself and the children.[55]
[55] G15c/140
The Applicant in turn submits that the family violence offending was infrequent, arguing that he has been in a relationship with ER since 2004 and the first recorded instance of family violence was in September 2020. In a written submission the Applicant states there is no evidence his children suffered lasting physical and emotional traumas as the result of his conduct.[56]
[56] G15/114
I take into account that the Applicant has undertaken some rehabilitation including his attendance at the White Ribbon course. Nevertheless, I accept the Respondent’s contention that the family violence engaged in by the Applicant has increased in both severity and frequency in the period leading to his incarceration in July 2021. Paragraph 8.2(3) of the Direction requires that any increase in seriousness of family violence offending be given consideration and I note the seriousness of the family violence has escalated, as has the frequency.
Finally, the fact that the family violence occurred in front of his children, and in the evidence of ER the Applicant requires the intercession of his children to stop his conduct, shows the degree of impact his conduct has towards his children even if no such acts were ever directed towards them.
This primary consideration weighs heavily against revocation of the cancellation decision.
primary consideration 3 - BEST INTERESTS of MINOR children
Direction 90 sets out a number of factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in relation to the child, the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles with the child, any known wishes of the child, and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions including through exposure to family violence.
The Applicant is the father of 8 minor children, all of whom are minors:
·KI born in 2007
·OM born in 2008
·NA born 2011
·LI born 2013
·HA born 2014
·IK born 2015
·AN born 2020
·OA born 2021
Having been a ‘stay-at-home’ father the Applicant claims to be close to all of the children, though he has not met OA who was born after the Applicant was imprisoned in 2021.
Should his visa not be reinstated, the Applicant worries how his children would cope without him. The children tell him that they miss him and the Applicant contends that the children are already ‘struggling’ and missing school. The older children have also been required to assume additional responsibilities on account of his absence and ER working long shifts. OM is required to prepare her siblings for day care and school as their mother leaves for work at 4:30AM.
AN is showing signs of developmental delays and has seen a specialist in relation to this. The Applicant’s family have told him that AN’s developmental issues are on account of AN missing him, but the Applicant is concerned that it is more serious than that. Should his visa not be reinstated, the Applicant fears that his children will be bullied at school as a result of their father being deported.
ER writes that the ‘children have been longing to see their dad and are waiting for his return’. Since the Applicant has been imprisoned and then in immigration detention ER writes some of the children who ‘are very close to their father’ have been having ‘issues’ at home and their school attendance has suffered. The children, particularly the eldest two, are showing signs of behavioural issues in their father’s absence and their school attendance has suffered.[57]
[57] G16a/151
ER writes that the Applicant ‘is everything to his children’ and the impact of his being imprisoned and having his visa cancelled has been difficult for the children as he was the one they turned to when things were ‘not going right’.[58]
[58] G16a/151
The Applicant’s daughter KI writes that her father is a good man and that her mother has been sad since he left. She writes it is no fun without her dad and states that her baby brother also loves his mother and father. She confirms that ER is required to work hard and it is difficult to manage without the Applicant’s help around the house. Without him there is also no one to drop her and her siblings at school. Sometimes the children walk to school and other times their aunty helps.[59] There is also evidence, which I accept, that on occasion the children do not attend school at all.
[59] G16b/153-154
OM writes in similar terms and notes that her mother works 12-hour shifts and that sometimes they do not attend school because they miss their father. She writes that the Applicant brings them much joy and they hope to have him back with them as life is not the same without him.[60]
[60] G16c/155
The Applicant also has nieces and nephews with whom he has ‘a special bond’. IM, LM, LE and MA are all under 8 years of age. The children of LO and MI are also included as children he has a bond with. NR was born in 2018, IR was born in 2019 and AM and EH were born in 2008 and 2020 respectively. The Applicant reports that AM and EH reside with him and he prepared them lunch and took them to school each day. The Applicant considers IM and LE to be his own sons. He writes that their parents would drop them off at his house early in the morning and he would take them to and from school each day.[61]
[61] G15d/147
LE is like one of his own children who he takes to school and she regularly visited the Applicant’s house to play with his own children. He would see NR and IR three times a month. The Applicant considers that all the children would be ‘devastated’ should his visa not be reinstated.[62]
[62] G15d/147
In relation to the Applicant’s own children, it is not in contention that he plays an important parental role. The youngest of his children is just two years of age and most of the children are many years from adulthood.
Based on the evidence I am satisfied that the Applicant was a carer for his own children and the other children he identified as being affected by his absence. By taking this role, the Applicant allows ER to focus on working and due to the nature of her work ER cannot supplant the role the Applicant plays in the family. As a stay at home father he took responsibility for preparing the children for school and transporting them to and from school. The Applicant’s nieces and nephews are also dependent on him, though to a lesser degree as their own parents can fulfil the parental role in his absence. I note, however that the effect on AM and EH, who reside with the Applicant, would be greater.

The Applicant’s submission that his older children, particularly OM and KI, are suffering as they are required to assume responsibility for caring for their siblings is accepted, as is the detrimental impact his absence is having on their behaviour and school attendance. The views expressed by both children in their statements of support weigh in favour of revocation.
The Direction also requires me to consider any evidence that the children have been or are at risk of being subject to or exposed to family violence perpetrated by the Applicant. Police reports indicate that the domestic violence offence which occurred on 7 September 2021 prompted ER to have the children collected as they were scared and crying. Some of the Applicant’s children were also involved in the initial altercation which led to him smashing another child’s phone in March 2021, though it is not clear if the children witnessed the incident.
I take into consideration that whilst the Applicant was the primary carer for the children, he also used a significant portion of the family budget to feed his drug use. By his own account he was using methamphetamine multiple times a week which he estimates required him to spend $400 each week on the drug. He told the Tribunal the household budget consisted of at least $800 each week from ER’s salary plus another $1200 each fortnight the couple received in social security benefits. Of a weekly household income of approximately $1400, he was spending up to $400 each week to sustain his drug addiction.
Nevertheless, whilst the nature of the Applicant’s offending is of concern in relation to the best interests of the children, the evidence overwhelmingly supports a conclusion that he is important to the operation of the household. He supports ER by taking responsibility of caring for, supervising and transporting the children - his and the others he cares for – as well as providing emotional support and engagement for the children. I also take into account the number of children who are dependent on the Applicant, the age of the children, the emotional and behavioural impact of his absence on the children and the potential special care requirements of AN when considering the weight to be afforded to this primary consideration.
I consider this primary consideration weighs very heavily in favour of revoking the cancellation of the Applicant’s visa.
primary consideration 4 - Expectations of the AUstralian community
Paragraph 8.4 of the Direction requires me to consider the expectations of the Australian community. Subparagraph 8.4(1) relevantly states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In FYBR v Minister for Home Affairs[63] the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.4 of Direction 90.
[63] [2019] FCAFC 185
The Direction lists specific conduct which the Australian community as a whole expects would raise serious character concerns and an expectation that the person would not hold an Australian visa. Having regard to the provisions of Direction 90 and the Applicant’s criminal offending, the Australian community would expect that the Applicant should not continue to hold a visa.
I am satisfied that the expectations of the Australian community would normally weigh against revoking the visa cancellation on account of the Applicant’s criminal conduct.
Other considerations
I now turn to considering the other considerations set out in the Direction.
ER’s desire that the Applicant remain in Australia has been taken into account as part of the Applicant’s ties to the Australian community. This is consistent with the reasoning of the Full Court of the Federal Court in XXBN v Minister for Immigration, Migrant Services and Multicultural Affairs, where it was held that ‘where a matter is relevant to two or more mandatory relevant considerations, a decision maker is not usually required to take the matter into account repetitiously.’[64]
[64] [2022] FCAFC 74, [53]
Extent of impediments if removed
I am required to consider the extent of any impediments that the Applicant may face if removed from Australia in establishing himself and maintaining basic living standards in New Zealand.
The Applicant claims not to have any connections in New Zealand and does not currently have a relationship with members of his adopted family. The Applicant submits that should he be returned to New Zealand he would lack social, economic and familial ties which would have a negative impact on his mental health. In his written statement he expresses concern that should he be returned to New Zealand he may harm or kill himself as he would be separated from his wife and children.[65]
[65] G15d/148
The Applicant lived in New Zealand from age 12 until immigrating to Australia at age 27. As such I consider that he would have some familiarity with New Zealand. However, I acknowledge that he has not lived in New Zealand since 2004, returning only briefly in 2007 and 2009.[66] He will likely face practical, financial and emotional hardship on return to New Zeeland. He will not have a support network available to him to provide accommodation or assist with finding employment in the first instance. These factors are genuine impediments appropriately afforded significant weight in the Applicant’s favour.
[66] G17/171
Though the Applicant is at 45 of age a relatively young man, owing to how long he had been in Australia reintegration into New Zealand would be difficult, but I do not consider the challenges to be insurmountable. He would have access to the same healthcare and social security as other New Zealand citizens, and can expect to access comparable treatment for his mental health should he choose to pursue further treatment.
Overall, this consideration weighs strongly in favour of revocation for the reasons set out above.
Links to the Australian community
I am required to consider the strength, nature and duration of the Applicant’s ties to Australia. The Applicant has been residing in Australia for 17 years and he is entitled to some weight under subparagraph 9.4.1(2) of the Direction.
I note at the outset that his adoptive father and sister reside in Australia. [67] However, as the Applicant has not provided specific information regarding his relationship with them I am unable to assess the strengths of these ties.[68]
[67] G13a/91
[68] G15d/145
I accept that the Applicant’s family and extended support network, notably ER and his children, as well as his extended family, notably his in-laws, reside in Australia. Whilst it would be open for members of the Applicant’s family to return to New Zealand with him, the evidence is that they would not do so.
Further, the Applicant has expressed concern that his children, all of whom were born in Australia, would not be eligible for New Zealand citizenship on account of he and ER both obtaining New Zealand citizenship by descent. Beyond the concerns expressed by the Applicant and ER, there is no information before the Tribunal to indicate it would not be possible for the Applicant’s children to reside with him in New Zealand should they choose to do so.
ER has expressed a strong desire for the Applicant to remain in Australia, though the Applicant gave evidence that she has not visited him whilst in detention, which he attributes to her being a learner driver and it taking up to 50 minutes to travel to the detention centre where he is being held. They do, however, speak daily on the telephone.
Should the Applicant be deported to New Zealand, I accept that it would have a significant practical and emotional impact on ER. She would become solely responsible for the care of the couple’s eight children. Though she has extended family who may be able to assist in these responsibilities, it can be expected that she would face an additional burden and has given evidence confirming as much. I also take into account the emotional impact it would have on her. The Applicant and her have been in a committed relationship for 18 years and have rarely been apart except when the Applicant had been imprisoned or in detention.
Letters of support have been provided by family and friends including his church pastors. I acknowledge the impact that the Applicant’s removal would have on these individuals. Some of these rely on the Applicant for practical assistance including accommodation and care for their children.
The Direction requires less weight to be given to this consideration where the offending began soon after arriving in Australia, and I note that the Applicant’s first offence occurred when he had been in Australia for only three weeks.
Weight should be given where a non-citizen has spent more time contributing positively to the community. I accept that the Applicant has worked for substantial periods up until he became a full-time carer for his children, which itself was a contribution to the community. He has also provided community service through his church and gave assistance and accommodation to others.
Overall, I am satisfied that this consideration weighs very strongly in favour of revoking the cancellation of the Applicant’s visa.
Conclusion
The Applicant’s offending has been frequent and his recent offending very serious, involving acts of violence against vulnerable members of the Australian community. The Applicant has taken some steps toward rehabilitation and he now has a substantial period of sobriety beginning with his imprisonment in September 2021. However, the risk of reoffending remains and the protective factors I have identified remain untested. The nature of his offending is such that the protection of the Australian community and the primary consideration relating to family violence count against revocation and are both afforded significant weight. The expectations of the Australian community also weigh against the Applicant.
The primary consideration relating to the best interests of minor children in Australia affected by the decision weighs heavily in favour of the Applicant. Along with his own children, he also has caring responsibilities for other children. The evidence supports his absence having a negative impact on the children and this consideration is afforded significant weight in favour of revocation.
After arriving in Australia at 27 years of age, the Applicant has established numerous and meaningful ties to the community, most notably ER, his extended family and church community. As such this consideration weighs in favour of revocation. I also expect the Applicant will have a difficult time readjusting to life in New Zealand in the absence of his family. Both considerations weigh strongly in the Applicant’s favour.
On balance, however, I find that the totality of the evidence and the considerations outlined in Direction 90 weigh in favour of affirming the reviewable decision.
Decision
For the reasons outlined above, the decision under review, being the decision of a delegate of the Minister dated 18 May 2022 not to revoke the mandatory cancellation of the Applicant’s visa is affirmed.

I certify that the preceding 164 (one hundred and sixty-four) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

........................................[Sgd]................................
Associate
Dated: 2 September 2022

Date(s) of hearing:
Applicant:

1 & 2 August 2022

Self-represented

Solicitor for the Respondent: Mr David McLaren, Minter Ellison