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

Nauer and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 457 (20 March 2024)
Division:GENERAL DIVISION
File Number(s): 2023/3070
Re:Robert Nauer
APPLICANT

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

DECISION
Tribunal:Senior Member Dr N A Manetta
Date:20 March 2024
Place:Adelaide

The Tribunal affirms the decision under review.
..................[sgnd]......................................................
Senior Member Dr N A Manetta
CATCHWORDS
MIGRATION ‒ mandatory cancellation of visa ‒ whether ‘another reason’ for revocation of cancellation decision ‒ Direction 99 ‒ conviction of serious offences involving armed robbery and assault ‒ history of drug dependence ‒ applicant reapplying for visa to facilitate visits to family in Australia ‒ low risk of reoffending ‒ strong familial and personal ties to Australia ‒ Direction speaks strongly against violent offending ‒ decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9
FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
REASONS FOR DECISION[1]
Senior Member Dr N A Manetta
[1] These reasons include certain standard paragraphs; see especially [4] and [24].

This is an application by Mr Robert Nauer seeking a review of a decision of the respondent’s delegate dated 2 May 2023. By this decision, the delegate declined to revoke the cancellation of Mr Nauer’s visa,[2] which had taken place earlier, and mandatorily so, under section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). The cancellation came about because Mr Nauer had committed a number of serious offences involving burglary, armed robbery in company, and assault occasioning bodily harm whilst armed. He was sentenced to three terms of imprisonment to be served concurrently. All of the terms of imprisonment exceeded 12 months, and Mr Nauer was required to serve part of these sentences on a full-time basis in jail. In these circumstances, his visa was required to be cancelled under the Act.
[2] A class TY subclass 444 Special Category (Temporary) visa.
Mr Nauer made a timely application for an internal review. The internal-review delegate had two questions to address under section 501CA(4)(b) of the Act.[3] The first was whether Mr Nauer passed the so-called ‘character test’ under the Act. Given Mr Nauer’s most recent criminal convictions, to which I have referred, he could not pass the test.[4] The delegate was clearly correct in his or her conclusion in this regard.
[3] The delegate’s reasons appear at Ex R1, 12ff.
[4] See section 501(6) and (7)(c) of the Act.
The second question, which arose only if the answer to the first question was in the negative, was whether there was ‘another reason’ for the visa cancellation to be revoked. In addressing this second question, the internal-review delegate was required to apply Direction no. 99 issued under section 499 of the Act (‘the Direction’).[5] The delegate weighed the various matters required to be considered under the Direction and concluded that they did not favour revocation of the cancellation decision. Accordingly, the delegate declined to revoke the cancellation.
[5] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 99 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).
TRIBUNAL’S TASK
Hearing the matter afresh on the evidence before me, I must address the same two questions. I have already indicated that the first question was correctly answered by the delegate. The second question was the only controversial one before me. In a case like this, the Tribunal hears the matter afresh on the evidence before it. It hears evidence and oral submissions and receives written documents and written submissions. It does not merely review the delegate’s decision for error, but reaches the correct or preferable decision on the evidence adduced before it.[6] It follows that the Tribunal may set aside the decision under review notwithstanding the absence of any error in the delegate’s reasons if that is the correct or preferable decision on the evidence before it. Equally, the Tribunal may affirm the decision under review notwithstanding the presence of a clear error in the delegate’s reasoning if that is the correct or preferable decision on the evidence before it.
[6] See, for example, Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51].
At the hearing before me, Mr Nauer represented himself; Ms Letcher-Boldt represented the respondent.
STATEMENT OF CONCLUSION
I have decided to affirm the decision under review. I set out below the background facts and the reasons for my conclusion.
BACKGROUND FACTS
Mr Nauer gave evidence before me. He was born in 1994 in Auckland, New Zealand and was 28 years of age at the time of the hearing before me. He has a Samoan background. His parents are still alive and remain married. They presently reside in Brisbane. His mother is in her late fifties, as is his father. They are both employed. Mr Nauer described his father’s health as ‘generally okay’, but he suffers from bad gout; his mother’s health is relatively good.
Mr Nauer has one older sister living in Brisbane who looks out for their mother and father and generally assists them. He has one younger brother, who was in jail in New Zealand at the time of the hearing before me.
Mr Nauer left New Zealand with his family in 2003 for Brisbane. Although there had been earlier trips to Australia, Mr Nauer moved definitively to Australia at the age of eight in November 2003. He was granted a class TY subclass 444 Special Category Temporary visa in January 2011.
Mr Nauer’s family came to Australia, he said, because his parents were seeking better opportunities for the family. On his arrival in 2003, Mr Nauer attended primary school on the north side of Brisbane and stayed at that school until Year 7. He attended two different high schools and completed his Year 12 certificate.[7]
[7] He also has a Certificate III in Warehousing and a Certificate III in Automotive: see Ex R1, 67 and 81.
He was happy enough at school, he said, and he had some friends. His home life was good at the beginning as well. He described his mother and father as having been happy together, and they tried to make things work out well for their children.
In Year 8, however, Mr Nauer began mixing with children who were a bad influence. He said the family had moved to a caravan park because rents had become unaffordable. The caravan park was located in an undesirable area. He described his living circumstances in the park as difficult: violence and drugs were both prevalent.
After Year 12, Mr Nauer left school and began work at a meat factory, but it lasted just a few weeks. At that point, he decided ‘to go down the wrong path' as he put it. He had no further work after the meat factory.
I shall come to Mr Nauer’s criminal record shortly. As a result of his most recent offending, his visa was cancelled on 13 September 2017, and he decided to move to New Zealand when he was paroled in November 2017 rather than enter immigration detention.
Mr Nauer made representations within a week of his visa’s cancellation. It took the internal-review delegate over five-and-a-half years to make a decision not to revoke the cancellation. I note that that is a very long time. No explanation was provided to me in respect of this delay. The internal-review delegate’s decision was communicated to Mr Nauer on 5 May 2023, and he lodged his appeal to this Tribunal promptly.
Mr Nauer has lived in New Zealand since his return there in November 2017. He first moved into a halfway house and then moved in with family. He described himself as being in and out of the crime scene there until 2019. Fortunately, he met his partner in 2019, and Mr Nauer has since married her. At the time of the hearing before me, they were expecting their first child, due, as I understood the evidence, in May 2024.
The couple are happily married in New Zealand and living in West Auckland. He is now a lorry driver while his wife works with a company that supplies supermarkets. They are living in comfortable rented accommodation.
Mr Nauer has settled well in New Zealand, although he did refer to living costs in Auckland being high. He said he has no interest in returning to Australia permanently. He wants his visa reinstated so that he can visit family members in Australia. These comprise mainly his parents, sister, and cousins, together with his wife’s family in Melbourne.
I turn now to Mr Nauer’s criminal record. This was before me in evidence.[8] Mr Nauer has a number of offences against his name where no conviction was recorded, although fines were imposed. That the offending was not punished by a conviction would suggest that it was very minor offending. That offending certainly cannot be a tipping point in my deliberations and for that reason I do not need to consider it further.[9]
[8] Ex R1, 25ff.
[9] I note that I was asked to ignore the offending at Ex R1, 26 which refers to a conviction while Mr Nauer was still a minor and I have ignored it.
Mr Nauer was convicted of three very serious offences on 15 June 2017 by the District Court of Queensland sitting in Brisbane. I accept the sentencing remarks that were before me[10] and have relied upon them. In company with his younger brother, Mr Nauer broke into a house where they thought they would be able to obtain drugs. They went to the wrong house, however. The younger brother entered the house through a sliding door at the back while the householders were watching a movie. Mr Nauer entered the dwelling from the front door. One of the householders tried to jump the back fence to get away. He was assaulted by both Mr Nauer and his brother. Mr Nauer chased one of the householders with a knife and threatened to kill them at a point. An iPhone, two laptops, and a wallet were stolen by the pair.
[10] Ibid, 28ff.
The Court found that the offending was very serious, as it self-evidently was. It noted that Mr Nauer was 21 at the time of the offending and still young. The Court described Mr Nauer’s earlier offending as relatively minor. Mr Nauer’s early plea was noted as well as his full admissions. The Court records that Mr Nauer had had a problem with drugs, including the use of acid from the age of 17.
Three concurrent sentences were ordered to be served by Mr Nauer. The offence of entering a dwelling with intent at night in company, and the offence of armed robbery each received a sentence of two years and six months. The assault occasioning actual bodily harm whilst armed in company received a sentence of 18 months. Mr Nauer had been in jail for four months as at the date of sentencing on 15 June 2017; and a parole date of 14 November 2017 was fixed by the Court. In due course Mr Nauer was released and, as I say, he left Australia permanently at that point rather than enter detention.
Finally, I would note that Mr Nauer was candid in his personal circumstances form. Being ‘upfront’, he said he was using drugs at the time he committed the offences.[11]
REASONS
[11] Ibid, 66.
Considerations arising under the Direction
With that background in mind, I now turn to the Direction. In FYVY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 790, I made certain prefatory remarks that I repeat:
[30] The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
[31] Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in paragraphs numbered (1) to (6). I set out some of the salient features of these principles.
[32] First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. The level of tolerance will rise with the length of time non-citizens have spent in the Australian community, particularly in their formative years. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence and other types of specified conduct is so serious that even strong countervailing considerations may be insufficient, and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
[33] Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight “generally” to primary considerations over other considerations.
I now turn to apply the Direction. Paragraph 8.1(1) requires decision-makers to bear in mind that the Australian Government is committed to protecting the community from harm as a result of criminal activity or other serious conduct by non-citizens. I am required to have regard to the principle that entering or remaining in Australia is a privilege that is conferred in the expectation that non-citizens will be law-abiding and will not cause or threaten harm to individuals or the Australian community. This is an important principle to my mind. It applies with some considerable force in respect of the illegal entry of domestic premises and of theft and assault committed in connection with that entry.
Subparagraph (2) requires me to give consideration to the nature and seriousness of the noncitizen’s conduct to date and the risks to the Australian community should he commit further offences or engage in other serious conduct. Clearly the offending is very serious. I am required by the Direction to view violent crimes as very serious: see paragraph 8.1.1(1)(a)(i). The sentences that were imposed were a clear reflection of the seriousness with which the Court regarded the offending.
Mr Nauer’s offending history does not reveal frequent serious offending, and there is no trend of increasing seriousness as such. More accurately, there was a sudden escalation in seriousness in respect of the most recent offending: see paragraph 8.1.1(1)(d).
Paragraph 8.1.2(1) requires me to 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. I bear that principle in mind.
Subparagraph (2) requires me to have regard to two matters ‘cumulatively’. These are, first, the nature of the harm to individuals or the Australian community should Mr Nauer engage in further criminal or other serious conduct; and, secondly, the likelihood of his so engaging in that behaviour. Illegally entering domestic premises whilst armed represents a most serious infringement of other citizens’ rights. The harm in this case was physical, but it could also have extended to a significant psychological harm; and, if it did not cause that sort of harm in this case, that harm could nevertheless be a predictable consequence in a hypothetical future case. There is also the loss of property which must be taken into account even though it is of lesser significance. Taken as a whole, Mr Nauer’s crimes constitute a very serious instance of antisocial offending in a private residential environment where the occupants expected to be safe.
I do regard the risk of recurrence as very low, however. I believe that Mr Nauer has turned a corner in his life. He has a wife to support now and a child on the way, and drug dependence is no longer an issue in his life. I believe him when he says that this offending belongs to a different stage of his life, and that his wife has brought about changes in him.
I bear in mind, however, that the very low risk must be assessed ‘cumulatively’, i.e., in conjunction with the nature of harm under paragraph 8.1.2(2)(a), which I have assessed to be very serious in this case.
There is no family violence to consider.
I must have regard to the strength, nature and duration of Mr Nauer’s ties to Australia. There would be, in my opinion, an immediate adverse effect on Mr Nauer’s parents[12] and sister, who are his immediate family members in Australia. Mr Nauer states that his permanent departure would affect his parents’ mental health, which I accept.[13] That Mr Nauer could no longer visit Australia would impact him as well. I accept that Mr Nauer does not wish to emigrate to Australia, but he does wish to visit with his family. That will be important to him and to them. I bear in mind, however, that Mr Nauer’s parents may travel to New Zealand, time, health, and money permitting. They are presently able to travel there, although in due course they will become frailer; and I accept Mr Nauer’s evidence that his mother at least has a clear preference not to travel to New Zealand for personal reasons (given her dislike of the wider family situation there). At a practical level, this means the parents will not travel again to New Zealand.
[12] I note Mr Nauer’s mother’s letter at Ex R1, 42.
[13] Ex R1, 79.
I accept that Mr Nauer would also wish to keep in contact with his wife’s relatives who live in Australia and who travelled to his recent wedding.[14] He has developed a particular connection with one of his wife’s siblings, the youngest of whom he worked with in New Zealand and who now lives in Australia. But he acknowledged in his evidence that they could come over to visit him in New Zealand. He also mentioned that he likes the oldest of his wife’s siblings very much. I accept his evidence in this regard.
[14] There are three siblings-in-law appearing at Ex R1, 79.
Mr Nauer has cousins in Australia. He mentioned one who he believes would appreciate a personal visit from him as he is not doing too well at the moment on account of a divorce. As I understood his evidence, they grew up together in Brisbane, and he is around the same age. It would be difficult for this cousin to visit him in New Zealand. He has a relationship with his wife’s nieces and nephews. It is not particularly strong, he said, but it is a relationship one he would like to develop in person. More generally, Mr Nauer mentioned[15] that his extended family in Australia is so numerous it comprises too many to count.
[15] Ex R1, 79.

The essence of Mr Nauer’s concern here is that all his family members and many of his wife’s family members reside in Australia, and it would be a very severe hardship not to be able to visit them occasionally from New Zealand. That would be a hardship both for them and for him. I accept that evidence.
Mr Nauer mentioned that he had a few workmates from Australia, and this forms a further connection. He has a limited work history in Australia, however. He has a best friend here named Josh. I acknowledge the references that have been written in his favour.[16]
[16] Ibid, 34, 36, 38, 40.
I also note that I am required to have regard to the fact that considerable weight is to be accorded to the fact that Mr Nauer came to Australia as an eight-year old: see paragraph 8.3(4)(a)(i). Up until his departure, he had little connection with New Zealand.
All in all, the consideration concerning the strength, nature, and duration of Mr Nauer’s ties does count substantially in his favour as the relationships are important, long-standing, and his own connection with Australia is a long one dating from his childhood. I note that Mr Nauer said that he does not intend to resettle in Australia, but merely wishes to visit from time to time. This means, of course, that he does not plan to be a regular feature of the lives of family members in Australia in the sense of having ongoing one-on-one contact. I nevertheless accept that he wishes to maintain the relationships personally, and relationships are often more meaningfully maintained with at least occasional personal contact.
I must consider the best interests of minor children in Australia. Mr Nauer mentioned, as I have already indicated, his wife’s nieces and nephews. These relationships are not parental relationships, however, and that is a matter to which the Direction directs my attention.[17] Mr Nauer said that the relationships are not particularly strong at the present time, but they are ones that he would wish to develop. They arose as a consequence of his marriage after his return to New Zealand. Nevertheless, it is a matter that counts in Mr Nauer’s favour.
[17] See paragraph 8.4(4)(a) of the Direction.
I must consider the expectations of the Australian community. Paragraph 8.5(1) provides that 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 the Australian community ‘as a norm’, although not as an inflexible rule, expects the Government not to allow the non-citizen to enter or remain in Australia. This expectation is said to apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[18] Moreover, I am to apply the expectations as given in paragraph 8.5 without independently assessing the expectations by reference to the facts of the particular case.[19] This consideration counts substantially against Mr Nauer.
[18] See paragraph 8.5(3) of the Direction.
[19] See paragraph 8.5(4) of the Direction.
I turn now to consider the so-called ‘other’ considerations under section 9. There is a non-exhaustive list of four such considerations listed. Mr Nauer had been settled in New Zealand for the last six years or so as at the date of the hearing before me. He has a good job and has built a solid family life. He does not wish in fact to return to Australia. In my opinion, there are no impediments at this stage that need to be weighed. None of the other three considerations appears relevant. I accept that the effect of a decision to affirm the decision under review would be to prevent Mr Nauer re-entering Australia permanently.
WEIGHING THE CONSIDERATIONS
I turn now to weighing the considerations. Mr Nauer has clearly turned a corner in his life, as I have said, and he is to be commended for that. His wife gave evidence to that effect as well, and I believe that is genuinely the case. He no longer uses drugs, he has a responsible family attitude, he has a settled job and income, and he wishes to have his visa reinstated to facilitate a prosocial choice to visit family in Australia and to assist his parents as they age. I accept, of course, that while that is his present intention, the visa would give him a right to remain in Australia for as long as he wished on each occasion he travelled here.
In my opinion, Mr Nauer poses very little risk to Australia at this stage of his life. I acknowledge that he has spent his formative years in Australia having arrived here as a youngster. His parents and sister and extended family live here, including cousins with whom he grew up. I do not doubt that there will be some considerable impact upon those relationships arising from the fact that Mr Nauer will not be able to resume them on a one-on-one basis in Australia. That is very unfortunate. He will lose ongoing one-on-one contact with a few friends he has here, including Josh, and he will not be able to develop or sustain meaningful one-on-one relationships with his wife’s family in Australia.
I am also prepared to act on the assumption that Samoan culture emphasises family in particular, and there may be, therefore, a special hardship for Mr Nauer and all his relatives and extended family members in a decision to affirm the cancellation of his visa. I do bear all this in mind as a most serious consideration. I must face the consequences of affirming a decision to cancel a visa, and these consequences involve here, as they frequently do, the fracturing of family ties that are of real importance to affected individuals.
Nevertheless, the Direction speaks clearly against the very serious crime in which Mr Nauer chose to involve himself. Armed robbery of domestic premises is a very serious crime. An occupant was assaulted and others were intimidated. The community’s expectations, as specified in the Direction, are, for example, very clearly against him. I must take these expectations as set out in paragraph 8.5 and they apply even in circumstances where I am satisfied the non-citizen does not pose a measurable risk of causing physical harm to the Australian community. It is most unfortunate that Mr Nauer lost his right to remain in Australia and may not even visit it; but it must also be said that this situation has arisen as a direct consequence of what were very serious criminal acts committed in company, ones that attracted long and serious jail sentences.
I have weighed the considerations, and I have considerable sympathy for Mr Nauer because I genuinely believe he is reformed and a much more balanced and stable person than he once was. He wishes to participate in family life in Australia in a prosocial way, as I say, and part of his motivation in approaching the Tribunal is to see, and assist, his parents as they age. On balance, however, my evaluation of the considerations under the Direction is that they do not favour revocation of the cancellation decision.
FORMAL DECISION
48.Having reached this conclusion, I have decided that I am not satisfied there is ‘another reason’ to revoke the visa-cancellation decision under section 501CA(4)(b)(ii). The appropriate formal decision is, therefore, to affirm the decision under review.
I certify that the preceding forty-eight (48)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
Dr N A Manetta
………[sgnd]……………………..
Associate
Dated: 20 March 2024
Date of hearing:  13 September 2023
Advocate for the Applicant:      Self-Represented
Advocate for the Respondent:  Emma Letcher-Boldt
Clayton Utz

[2024] AATA 457

20 March 2024

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