Namoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Namoa and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 991 (14 April 2022)
Division:GENERAL DIVISION
File Number(s): 2022/0621
Re:Sione NAMOA
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member M Griffin QC
Date:14 April 2022
Date of written reasons: 14 April 2022
Place:Sydney

The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 24 January 2022 not to revoke the mandatory cancellation of the Applicant’s Special Category (Class TY) (Subclass 444) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Special Category (Class TY) (Subclass 444) visa is revoked.
..........................[sgd]..............................................
Senior Member M Griffin QC
CATCHWORDS
MIGRATION – visa cancellation – mandatory cancellation due to substantial criminal record – Direction No. 90 – protection of the Australian community – best interests of minor children – expectations of the Australian community - links to the Australian community – first criminal conviction – decision under review set aside and substituted.
LEGISLATION
Migration Act 1958 (Cth) s 499, 500, 501, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
SECONDARY MATERIALS
Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member M Griffin QC
14 April 2022

The Applicant seeks review of a decision of the Respondent by the Delegate made on 24 January 2022 under subsection 501(1) of the Migration Act 1958 (Cth) (the Act).
FACTS
The Applicant is a 34-year-old citizen of New Zealand who first arrived in Australia in December 1995 as a young teenager of approximately 14 years of age. Apart from four minor departures on family matters from Australia, he has remained in this country for the rest of his life, that is, for about 20 years. The Applicant held a Special Category (Class TY) (Subclass 444) visa (the visa) that was granted in 2018.
The circumstances of this application come about because of the conviction by the Applicant in the Brisbane Magistrates Court in May 2021 for a series of assaults, wilful damage and other offences. The Applicant received a sentence of 12 months imprisonment for the most serious of those offences, and lesser sentences for the related less serious charges, to all of which charges the Applicant pleaded guilty.
In January 2022, a delegate of the Minister decided not to revoke the mandatory cancellation brought about by the commission of those offences referred to above.
ISSUES
The Applicant does not pass the character test because he has a substantial criminal record by virtue of having been sentenced to a term of imprisonment of 12 months or more: ss 501(6)(a) and (7)(c) of the Act. This is not disputed by the Applicant.
The sole issue for the Tribunal's determination is whether it can be satisfied that there is another reason why the original decision should be revoked, such that the Tribunal may revoke the decision: s 501CA(4)(b)(ii) of the Act.
RELEVANT LEGISLATION AND POLICY
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).
Section 501CA(4) 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.
In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38], North ACJ held that:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.
Section 501(6)(a) relevantly provides that a person does not pass the character test if the Applicant has a substantial criminal history. Section 501(7)(c) states that a person has a substantial criminal history if they have received a sentence of imprisonment of 12 months or more.
The Applicant was sentenced to a term of imprisonment for more than 12 months. The Applicant does not pass the character test.
Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction No. 90). Section 5 of Direction No. 90 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern have a right to enter or remain in Australia. Being able to come 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 (paragraph 5.2(1));
(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 (paragraph 5.2(2));
(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 (paragraph 5.2(3));
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age (paragraph 5.2(4));
(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 (paragraph 5.2(5)).
Part 2 of Direction No. 90 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises four Primary Considerations and several specified, but non-exhaustive, Other Considerations, which must be taken into account.
Pursuant to Part 2 of Direction No. 90, the Tribunal must, to the extent that they are relevant to this case, take the relevant considerations (both primary and other) into account and take note that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight (paragraph 7.1).
(2)Primary considerations should generally be given greater weight than the other considerations (paragraph 7.2).
(3)One or more primary considerations may outweigh other primary considerations (paragraph 7.3).
These principles are, of course, dependent upon the facts and circumstances of each case.
The primary considerations are:
(1)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(2)Whether the conduct engaged in constituted family violence (Primary Consideration 2);
(3)The best interests of minor children in Australia (Primary Consideration 3); and
(4)Expectations of the Australian community (Primary Consideration 4).
The Tribunal must also take into account other considerations insofar as they are relevant.
These considerations include (but are not limited to):
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims;
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia;
(ii)impact on Australian business interests.
THE CHARACTER TEST
As set out above, s 501(6)(a) of the Act provides that a person does not pass the character test if the person has a ‘substantial criminal record’ as defined in s 501(7) of the Act.
For the purposes of the character test, a person has a substantial criminal record under s 501(7)(c) of the Act if the person has been sentenced to a term of imprisonment of 12 months or more.
In circumstances where the Applicant has been sentenced to imprisonment of 12 months or more, the Applicant satisfies the definition in s 501(7)(c) of the Act and therefore fails the character test.
EXERCISING THE DISCRETION
In exercising the discretion in s 501CA(4) of the Act, the Tribunal must comply with Direction No. 90 (see s 499(2A) of the Act) which sets out the relevant considerations.
Primary Consideration 1 – Protection of the Australian community
Paragraph 8.1 of Direction No. 90 provides:
When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction No. 90 provides that 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.
The nature and seriousness of the Applicant's conduct to date
Sub-paragraph 8.1.1 of Direction No. 90 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:
a)without limiting the range of offences 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 (sub-paragraph 8.1.1(1)(a)(i)- (iii)):
(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 (sub-paragraph 8.1.1(1)(b)(i)-(iv)):
(i)causing a party 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 197A 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 re-offended 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).
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2 of Direction No. 90 provides that decision-makers must have regard to the following:
(1)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.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, 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 non- citizen reoffending; 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).
c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Seriousness of offending and future risk
Paragraph 8.1.2(2)(b) of Direction No. 90 requires the Tribunal to have regard to the likelihood of the person engaging in further criminal conduct, including evidence of re-offending and rehabilitation.
The circumstances of the Applicant’s offending were referred to by the Sentencing Court and are set out below. The Applicant does not take issue with the facts as set out below:
You were following a car down Sir Samuel Griffith Drive at Mount Coot-Tha. The car in front of you broke to stop hitting some wildlife. There was no collision between your two cars. There was no requirement for you to take evasive action to avoid colliding with him; a minor inconvenience to you, perhaps. You had a number of choices from that moment onwards and, unfortunately, you made some very, very poor decisions after that.
You sped up and drove along the outside of the complainant’s car. He was a man and was in the car alone. You began to swerve wildly in an attempt to cause him to pull over. He broke heavily to avoid a collision with you. You then sped up on the inside of his car and overtook it, then increased your speed dramatically along the single lane road and repeatedly tried to cause the complainant’s car to crash by intermittently increasing and decreasing the speed of your car. He was so concerned, he phoned triple O. You then came to a complete stop which, again, caused the complainant to need to brake heavily.
You then got out of your car and made known your intentions for pursuing him and for driving in this particular manner. You were obviously very angry and enraged at the time. You punched the rear quarter glass causing it to smash. He sensing, perhaps, what was imminent, quickly reversed and drove away in the opposite direction. He watched to see if you were following him and when thought it safe to do so, got out and assessed what damage had been done. You had already visited violence on his property, and yet you took the opportunity of him stopping to again pull over. You and two other men got out of your car, and you assaulted that man.
You punched him a number of times to a number of different parts of his body. You knew the other people there were assaulting him too. One, it would seem, attempting to sweep his legs out from underneath him. That came after he had apologised to you and started to explain why he braked suddenly, but it appears you were not interested in discussing that with him at all, or of listening to what had occurred, but you did not leave it there with just visiting violence on his person. You went and armed yourself with a cricket bat from your car and came back and then began to cause even more damage to his car, breaking windows and causing dents to the panels of the vehicle. You dropped the cricket bat into the vehicle. You got back into your car and drive away.
The complainant was taken to the hospital and treated for injuries. They include swelling to his mouth and jaw, bleeding from his head, and bruising and swelling to his legs. The following day, police spoke with you. You made full admissions and expressed your remorse. You told them that you were extremely angry, and that once you were able to catch up with him, you just began assaulting him and trying to hit him. You told police that you had sustained an injury to your hand from punching his car. Mr Namoa, if it is not obvious to you, your conduct has to be viewed very seriously. You endangered not only the complainant’s safety and life, but that of other road users, that of your own, and that of your passengers.
The manner in which you drove, that is, deliberately trying to push someone off the road, is something that has to be viewed very seriously. Fortunately, you were not successful, and as I said, that has to be considered in circumstances where there is absolutely no justification for what you did in terms of the manner in which you drove, but then, to pull over, damage his property, and when he drives away, to not leave it at that, but, as I said, to take that opportunity on that second occasion to assault him and to do that, has to be viewed, objectively, very seriously. Conduct such as that, unfortunately, is not uncommon in our society.

Merely by recitation of the facts as the Sentencing Court describes them is sufficient for the Tribunal to conclude the utterly very serious nature of the Applicant’s offending. Were it not for certain subjective factors which the Tribunal both accepts and takes into account, this offending of itself might well be sufficient alone to deny the Applicant a visa to continue to live in Australia.
There are certain ameliorating subjective features that apply to the Applicant’s offending, and which change the view the Tribunal has of the entirety of the offending.
The fact that the Applicant came to know of a serious medical condition suffered by family members close to him is of some modest significance in the Applicant’s evidence. This information came to his knowledge about two weeks before the commission of the offence. However, of much greater significance is the fact that some two days, or thereabouts, before the Applicant’s offending, his partner suffered a miscarriage. The explanation of this by the Applicant in evidence and the powerful expression of its effect on the Applicant and his family, in the Tribunal’s view, leads to the conclusion that although this was not an excuse for the Applicant’s offending, the Tribunal is entirely satisfied that the impact of the miscarriage had an extremely detrimental effect on the Applicant’s emotional state which, in turn, led to extraordinary out-of-character behaviour.
The Tribunal accepts the evidence of others who spoke on the Applicant’s behalf that the behaviour was out of character and it is indeed supported, in any event, by the fact that the Applicant comes before this Tribunal at 34 years of age with a particularly unblemished record of behaviour, apart from an unenviable traffic history.
The Tribunal does not ignore that traffic history which suggests, over the years, an offender who exhibited continuing disregard for the rules of the road, for the safety of road users and others, and the general disregard for laws that applied to him. Nonetheless, the Tribunal does not discount the Applicant’s unblemished conduct otherwise by reason of that traffic history.
Furthermore, the Applicant is not said to have behaved inappropriately or in any way which can be criticised during his time in custody or immigration detention. This, in the Tribunal’s opinion, augurs well for future good conduct because of course, the particularly high-pressure environment of custody, and more so immigration detention, is likely to promote bad or violent behaviour by someone who finds oneself in those circumstances. Good conduct, on the other hand, the Tribunal finds, is fairly likely to suggest future good conduct within the community. In fact, past conduct and behaviour is generally considered an appropriate test and prediction of future conduct. The Tribunal forms a positive view of the Applicant’s future conduct by applying this test.
The Applicant has an excellent work history and has contributed to his immediate and extended family in that way, as well as having contributed to his local community through coaching sports and being generally involved in sporting activities. Such behaviour also suggests a suitable and well-behaved member of society as this Applicant had demonstrated prior to the offending in February 2021.
Clearly on the material provided by the Applicant, his immediate family and extended family members all support him and speak highly of him, as well as underscoring the surprisingly unusual and unexpected conduct by him in February 2021.
Particularly because of the Applicant’s past good behaviour and the finding by the Tribunal that his conduct was entirely out of character, the Tribunal is of the view that there is virtually no likelihood whatsoever that the Applicant will offend in the future. The Applicant has put in place, and the Tribunal views as genuine, a desire to resort to assistance from his General Practitioner and a psychologist in the future should he feel the need to do so. The Applicant in evidence said, and the Tribunal accepts, that he underwent a six-week course with a psychologist whilst in immigration detention, which the Tribunal regards as having some positive influence on the Applicant’s attitude and behaviour in general.
This consideration, because of the seriousness of the offending discussed above, must of course count against the Applicant but it is ameliorated by the matters discussed above, in particular, the hitherto relatively unblemished past conduct of the Applicant and the likely good behaviour in the future. Furthermore, there were extenuating circumstances to the Applicant’s emotional state when he committed the offending.
Overall, this consideration ultimately must weigh somewhat against the Applicant.
PRIMARY CONSIDERATION 2 – FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Paragraph 8.2(1) of Direction No. 90 provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 4(1) defines family violence to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful’ (emphasis in original).
Primary Consideration 2 is relevant in circumstances where (paragraph 8.2(2)):
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.2(2)(a)); and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.2(2)(b)).
Paragraph 8.2(3) of Direction No. 90 provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:
a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.2(3)(a));
b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.2(3)(b));
c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.2(3)(c)):
(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.2(3)(c)(i));
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));
(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); and
d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.2(3)(d)).
There is no evidence to indicate that this consideration is relevant to this review.
Primary Consideration 3 – Best interests of minor children in Australia
Paragraph 8.3(1) of Direction No. 90 provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision.
This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made (sub-paragraph 8.3(2)).
Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:
a)the nature and duration of the relationship between the child and Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact) (sub-paragraph 8.3(4)(a));
b)the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (sub- paragraph 8.3(4)(b));
c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));
d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways (sub-paragraph 8.3(4)(d));
e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).
The Applicant has a nephew and three nieces who resided in Australia, whose ages range from one to ten years of age. There was little evidence about these children in terms of detail in relation to their association with their uncle. The Tribunal is prepared to accept that there is some limited weight to be given to those children, none of whom were individually identified as having any particular or special relationship with their uncle on an individual basis.
The Applicant has two children, a female child and male child, who were born in 2009 and 2012 respectively. The interests of each child are not identifiably different in the Tribunal’s opinion.
There is evidence that the Applicant has had a traditionally good relationship with his children with whom he has lived with his partner. He has provided for them and, in all respects, there can be no negative aspects to the behaviour of the Applicant in relation to those children when one considers the categories required to be assessed under Direction No. 90.
The mother fulfils a parental role with each child. However, it is clear on the evidence that their father, the Applicant, played an important and significant role in the lives of those children prior to incarceration and detention.
There are two poignant letters before the Tribunal from each of those children whose views were sought and it is in respect of whom it appears, to the Tribunal’s mind, that these letters are written by the children themselves and thus, provide a strong and compelling argument for their father to remain in Australia.
The children have had regular contact with their father since he was sentenced to imprisonment and during his time in immigration detention through some restricted face-to-face visits and through very regular contact via social media.
It is hardly to the point that the Respondent submitted that the father has played no role in the children’s lives in recent times. There is some circularity in that argument which the Tribunal simply does not accept. In point of fact, the children have been deprived of their father and had little contact with him since he was in custody and held for some 8 months in immigration detention. It is the immigration detention that has deprived the children of their father.
An issue arose during the course of submissions and during the course of evidence which related to the fact that the partner of the Applicant said she was prepared to take the children and follow him to New Zealand if he was returned to that country.
A submission was made both briefly during the course of evidence, because the Tribunal requested the precise response from the Respondent, and was repeated in more elaborate terms during the course of the Respondent’s submissions.
That submission was to the effect that because the partner of the Applicant was prepared to follow him to New Zealand with the children, should the Applicant be required to return to that country, then the children would not therefore be deprived of contact with their father and that, therefore, this consideration carried little weight in the Applicant’s favour. The Tribunal regards that submission as having no proper foundation and itself carries no weight in the Tribunal’s ultimate consideration. Furthermore, it is essentially a submission which relies on a certain circularity of reasoning.
In Direction No. 90, paragraph 8.3, the following appears:
Best interests of minor children in Australia affected by the decision
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
It is clear enough that the considerations about the best interests of these two minor children should be considered in an objective sense, absent any future possible changes to the situation in which they are to be presently assessed, that is to say, as children presently living with their mother in Australia. It is irrelevant, in the Tribunal’s mind, that there may be on the evidence, some expression of future intent by the Applicant’s partner to follow him to New Zealand. The mere fact that this is a future expression of intent does not, in the Tribunal’s mind, affect the fundamental basic and objective consideration that is required pursuant to Direction No. 90, paragraph 8.3.
In the particular circumstances of this case, in the Tribunal’s opinion, the fact that by indicating an intention to follow the Applicant to New Zealand and bring her children with her to be with the Applicant, their father, is a deep and powerful expression of the family relationship that the mother feels about her partner, the Applicant. That relevant factor, the closeness of the relationship, is referred to under the other consideration ‘Links to the Australian community’.
Insofar as that proposed decision by the partner expresses a view about the need for the children’s continued association with their father in a physical since, together with the children’s own expression of their love for their father and their desire for him to remain in Australia, the Tribunal takes that into account under this consideration.
The Tribunal regards this submission referred to above, and made by the Respondent, as having quite minimal effect overall in diminishing this very powerful consideration in favour of the Applicant.
Ultimately, on all the facts in relation to this particular consideration, the Tribunal is very comfortably satisfied that this consideration provides powerful support for revocation of the mandatory disqualification.
Primary Consideration 4 – Expectations of the Australian community
Paragraph 8.4(1) of Direction No. 90 provides as follows:
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 not to allow such a non- citizen to enter or remain in Australia.
Paragraph 8.4(2) also provides that it may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion and ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185). Although these principles are discussed in relation to the former Direction No. 79, those principles are not relevantly different in principle with respect to Direction No. 90.
It is not for the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the ‘norm’ stipulated in Direction No. 90 at 13.3(1); as per Stewart J and Charlesworth J [93]; [100)] to [104]; [68].[1]
[1] FYBR v Minister for Home Affairs [2019] FCAFC 185
This consideration sets out the norm by which the Australian community expects non-citizens to behave in obeying Australian laws whilst living in Australia.
There is nothing in the facts and circumstances in this matter that would change the normal position in this case that this consideration must weigh against the Applicant.
OTHER CONSIDERATIONS
A decision-maker must also take into account Other Considerations where relevant. These considerations include (but are not limited to) (paragraph 9(1) Direction No. 90):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
(i) strength, nature and duration of ties to Australia; and
(ii) impact on Australian business interests.
International non-refoulement obligations

The considerations at paragraph 9.1 of Direction No. 90 include (but are not limited to):
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations.
(2)In making a decision under s 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct.
(3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa.
(4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa in a request to revoke the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).
(5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.
(6)It may not be possible at the section 501/section 501CA stage to consider nonrefoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of nonrefoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.
(7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the noncitizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.
(8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international nonrefoulement obligations.
There is no evidence to indicate that this consideration is relevant to this review.
Extent of impediments if removed
Paragraph 9.2(1) of Direction No. 90 provides:
(1)Decision-makers must consider the extent of any impediments that the noncitizen 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.
It is of course clear enough that the Applicant is a healthy, well-adjusted young adult male whose country of birth is New Zealand and in respect of whom it can be accepted that he has some family members living in that country, should he be returned to New Zealand. It is possible to infer that because of his good work history in Australia, and the nature of that work, that he would be able to find employment in New Zealand should he be returned.
It is equally obvious, however, that to transpose a person in the Applicant’s position to a new country in which he has not lived for some 20 years during his adult and formative life would likely cause real emotional difficulties at the very least, initially as he tries to establish himself in that country. The Applicant would have no difficulty with language or culture because of his cultural association with family members who are from New Zealand as well.
Overall, this consideration bears some weight in favour of the Applicant but it carries, because of what has been discussed above, little overall weight in the entire process of consideration.
Impact on victims
Paragraph 9.3(1) of Direction No. 90 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…
There is no evidence to indicate that this consideration is relevant to this review.
Links to the Australian community
Reflecting the principles of Direction No. 90 at paragraph 5.2, decision-makers must have regard to Direction No. 90, paragraphs 9.4.1 to 9.4.2 provided below.
9.4.1. The strength, nature and duration of ties to Australia
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
9.4.2 Impact on Australian business interests
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant arrived in Australia as a young person, a teenager, of about 14 years of age and therefore, it may be supposed and the Tribunal accepts, that he has lived all his adult life and his formative years in Australia which has had an obvious influence on him and which he and his family members regard as their home country. The Applicant has had a consistent employment history and has contributed to the Australian community through work, religious and sporting commitments.
There is abundant evidence, in the Tribunal’s view, that there are strong links between the family of the Applicant, his extended family through marriage, and the Applicant himself and his children. It is proper for the Tribunal to infer that these people would be affected emotionally should the Applicant be returned to New Zealand. Likewise, the Applicant would be deeply affected by such removal from those who are his extended family, all of whom support him and speak positively about him.
The Applicant has an excellent work history and has contributed to his immediate and extended family in that way, as well as having contributed to his local community through coaching sports and being generally involved in sporting activities.
Importantly, the Applicant’s partner and children reside in Australia.
There is no evidence of any impact on Australian business interests.
This consideration, which is accepted by the Minister, weighs in the Applicant’s favour and it carries, in the Tribunal’s view, considerable weight in favour of the Applicant.
CONCLUSION
A review of the various matters considered within the identifiable different considerations within Direction No. 90 leads the Tribunal to conclude, in this case, that although the Applicant’s offending was extremely serious, there is negligible likelihood of the Applicant re-offending and therefore, impacting any member of Australian society in the future.
There is a particularly powerful reason which the Tribunal concludes is “another reason” to reverse the non-revocation decision. That reason, to the Tribunal’s mind, includes both the best interests of the Applicant’s minor children in this case and the links the Applicant has to the Australian community. In arriving at this conclusion, the Tribunal has considered, analysed and synthesised all facts and relevant considerations within Direction No. 90.
DECISION
The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 24 January 2022 not to revoke the mandatory cancellation of the Applicant’s Special Category (Class TY) (Subclass 444) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Special Category (Class TY) (Subclass 444) visa is revoked.

I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

............................[sgd]............................................
Associate
Dated: 14 April 2022

Date(s) of hearing: 5 April 2022

Applicant: Self-represented

Solicitors for the Respondent: Ms C. Allen, Sparke Helmore

[2022] AATA 991

14 April 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Jurisdiction

Remedies

Date(s) of hearing:	5 April 2022
Applicant:	Self-represented
Solicitors for the Respondent:	Ms C. Allen, Sparke Helmore