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

[2021] AATA 376

Ngata and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 376 (3 March 2021)

Division:GENERAL DIVISION

File Number(s):      2020/8256

Re:Ilaisa Taka I Monu Ngata

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr S Evans, Member

Date:3 March 2021

Place:Sydney

The Tribunal decides that the decision under review, being the decision of a delegate of the Respondent dated 8 December 2020, not to revoke the mandatory cancellation of the Applicant’s Subclass 444 Special Category (Temporary) visa pursuant to subsection 501(3A) of the Migration Act 1958 (Cth), is affirmed.

.........................[SGD]...............................................

Mr S Evans, Member

CATCHWORDS

MIGRATION – non-revocation of mandatory cancellation of visa – where visa was cancelled under s 501(3A) because applicant did not pass character test – substantial criminal record under s 501(7) – whether there is another reason to revoke the mandatory cancellation of the visa – Ministerial Direction No. 79 – primary considerations – protection of Australian community – best interests of minor children – expectation of the Australian community – other considerations – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

SECONDARY MATERIALS

Migration Act 1958 – Direction No. 79 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (instrument made on 20 December 2018, commenced 28 February 2019)

REASONS FOR DECISION

Mr S Evans, Member

3 March 2021

1. The Applicant, Ilaisa Taka I Monu Ngata (“Mr Ngata”) seeks review of a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) not to revoke the mandatory cancellation of his visa. 

   INTRODUCTION

2. Mr Ngata’s visa was cancelled on 17 February 2020 under subsection 501(3A) of the Migration Act 1958 (Cth) (“the Act”). On 16 March 2020, Mr Ngata made representations seeking revocation of the mandatory cancellation. Following procedural fairness letters and additional submissions of information by Mr Ngata, a delegate of the Minister decided under subsection 501CA(4) of the Act not to revoke the mandatory cancellation of the visa. On 11 December 2020 Mr Ngata applied to the Administrative Appeals Tribunal (“the AAT”) for review of the delegate’s decision.

   HEARING

3. At the time of the hearing, Mr Ngata was being held in immigration detention.  He had legal representation and gave evidence to the Tribunal under affirmation.  The matter was heard over two days on 14 and 15 February 2021, and all participants appeared via videoconference.

   ISSUE TO BE DETERMINED

4. The issue for the Tribunal to consider is whether to revoke the original decision to cancel Mr Ngata’s visa pursuant to subsection 501CA(4) of the Act.

5. The Tribunal may revoke the original decision if the Tribunal is satisfied:

   (a)that the Applicant passes the character test as defined by paragraph 501(6)(a) and subsection 501(7) of the Act; or

   (b)that there is another reason why the original decision should be revoked: paragraph 501CA(4)(b).

6. It is agreed by the parties that Mr Ngata does not pass the character test as he has a “substantial criminal record” as defined by the Act. Therefore, the only relevant issue is whether there is another reason to revoke the original cancellation decision.

   RELEVANT LAW AND MINISTERIAL DIRECTION NO. 79

7. Section 501CA of the Act applies if the Minister decides under subparagraph 501(3A)(a)(i) to cancel a visa that has been granted to a person.

8. Subsection 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).

9. 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”. A person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more: paragraph 501(7)(c).

10. 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.

11. 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.

12. The Minister has made written directions under section 499 of the Act which must be complied with by decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction”).

    The Direction

13. Paragraph 6.2 of the Direction is entitled ‘General Guidance’ and relevantly provides:

    1.    The Government is committed to protecting the Australian community from harm as a result of the criminal activity or other serious conduct by non-citizens. The principles [in paragraph 6.3] are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

    …

    3.    The principles provide a framework within which decision-makers should approach their task of deciding … whether to revoke a mandatory cancellation under section 501CA. The relevant … factors that must be considered in making a revocation decision are identified in Part C of this Direction.

14. Paragraph 6.3 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.    The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    3.    A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    4.    In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    5.    Australia has a low tolerance of any criminal or other serious conduct by people 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 in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    6.    Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    7.    The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

15. Part C of the Direction identifies the considerations that decision makers must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation decision. The primary considerations provided in subparagraph 13(2) should generally be given greater weight than the other considerations.

16. The Direction also states that one or more primary consideration may outweigh the other considerations.

17. The “primary considerations” are:

    (a)protection of the Australian community from criminal or other serious conduct;

    (b)the best interests of minor children in Australia; and

    (c)expectations of the Australian community.

18. The “other considerations” are:

    (d)international non-refoulement obligations;

    (e)strength, nature and duration of ties;

    (f)impact on Australian business interests;

    (g)impact on victims; and

    (h)extent of impediments if removed.

19. The Tribunal is to consider each of the primary considerations and, as relevant, the other considerations.

    BACKGROUND

20. Mr Ngata was born in Auckland, New Zealand in August 1990.  He first arrived in Australia in June 2010 when he visited Australia with the aim of pursuing a career in rugby league.  He returned to New Zealand, travelling to Australia on a number of occasions.  In late 2014 Mr Ngata was offered a position playing for a rugby team.  Mr Ngata immigrated to Australia with his then partner Ms Andrea Faofua and the couple’s two sons, residing in Australia from 11 March 2015. 

21. In 2016 Mr Ngata and Ms Faofua separated, and Ms Faofua relocated to Queensland where she currently resides with Mr Ngata’s two eldest sons.  Later in 2016 Mr Ngata met Ms Jade Ngata and the couple married in November 2018.  Together they have a two-year old son and a daughter who was born in December 2019. 

22. Whilst living in Australia Mr Ngata has worked in Australia as a rugby union player, concreter, delivery driver, security guard and security supervisor.  He is also a competitive kickboxer. 

    Witnesses

23. In considering this application the Tribunal has taken into account the evidence of the following individuals who appeared to give evidence at the hearing and have provided written statements in support of Mr Ngata’s application.

    Statement of Jade Ngata

24. Jade Ngata (“Mrs Ngata”) has provided a statement detailing the couple’s history and the importance of Mr Ngata in her life.  Her evidence is detailed in these reasons.  

    Statement of Andrea Faofua dated 6 January 2021

25. Ms Faofua is Mr Ngata’s former partner and the mother of his two eldest sons.  She currently resides in Queensland and has found the absence of Mr Ngata’s emotional and financial support difficult. 

26. She writes that she has found it hard to discipline her boys as they only respond to Mr Ngata’s instructions and he is a very important figure in their lives.  Ms Faofua notes that the period that Mr Ngata was imprisoned and then in detention has been difficult for their children and the uncertainty over his future is making them anxious and distracted at school and she believes that there has been a negative shift in their thought patterns and behaviour without the active presence of Mr Ngata in their lives. 

27. Ms Faofua writes that Mr Ngata has changed, grown and matured since his offending in 2013 and both she and her current partner fully support him being able to remain in Australia. 

    Statement of Tanya Hobson made 31 January 2021

28. Ms Hobson is Mr Ngata’s mother-in-law and states that Mr Ngata is a good person who wants to make things right.  She told the Tribunal that if Mr Ngata were to leave it would have a significant impact on her and her daughter, Mrs Ngata.  She confirmed that after Mr Ngata was imprisoned Mrs Ngata  had to move out of the home they were renting and move in with Ms Hobson.  Since that time she has been the primary carer for Mrs Ngata’s children on occasion. 

    Statement of Robyn Hobson made 10 January 2021

29. Ms Hobson is Mr Ngata’s grandmother-in-law and great grandmother to Mr Ngata’s two youngest children.  She states that she has never seen Mr Ngata display anything other than kindness and care and vouches for his deep love for his family.  Ms Hobson was assisted by Mr Ngata’s positive attitude and love following a diagnosis of and treatment for breast cancer.  Should Mr Ngata be deported, Ms Hobson states that it will cause her great heartache. 

    Statement of Shane Tipa made 14 January 2021

30. Mr Tipa states that Mr Ngata’s offending was out of character and he believes that there is no risk of Mr Ngata reoffending.  He believes that the offending has “been a huge life lesson” for Mr Ngata.  Though an Australian citizen, he states that he is from New Zealand originally and confirms that Mr Ngata was raised in an area which is “quite rough”.  He would like Mr Ngata to have the opportunity to remain in Australia.

31. Mr Tipa has employed Mr Ngata at his security company and confirmed Mr Ngata held a leadership role at his company where he is respected. 

    Statement of Andy Bernal dated 14 January 2021

32. Mr Bernal is a friend of Mr Ngata’s who has known him for three years.  He writes that Mr Ngata is a “beautiful, caring, kind, gentleman” whose offending was out of character.  He notes that Mr Ngata is remorseful for his offending and that his sons in Brisbane are approaching an age where they need a father figure in their lives. 

    Statement of Simon Woolford made 14 January 2021

33. Mr Woolford has known Mr Ngata for six years.  Having met when Mr Woolford was Mr Ngata’s rugby coach, they have become good friends.  He was “genuinely surprised” when he heard of the charges against Mr Ngata as he has always found Mr Ngata to be “a quiet, kind, gentle, and loving family man”.  He sees Mr Ngata’s offending as being out of character.

    Undated statement of Carl Ruhen

34. Mr Ruhen has been a police officer in the ACT since 2007 and has been a close contact of Mr Ngata’s for five years. He believes that he is a good judge of character and was surprised by Mr Ngata’s offending. He does not believe that Mr Ngata is a violent individual and instead views the offending as a “one-off lapse of judgement”. He believes that Mr Ngata will be an asset to the Australian community should he be allowed to stay in Australia. Mr Ruhen writes that Mr Ngata is a respected member of the Tongan community in the ACT and a mentor to young people.

    Statement of Frank Tapia dated 14 January 2021

35. Mr Tapia has worked together with Mr Ngata in the security industry and vouches for his reliability and respect for others.  He writes that Mr Ngata takes his job seriously and does not use unnecessary force or aggression toward venue patrons.  Mr Tapia notes Mr Ngata’s remorse for his actions and the impact that events after the offending have had on Ms Ngata and Mr Ngata’s children.  Mr Tapia looks forward to working together with Mr Ngata again should he be released back into the community. 

    Statement of Melissa Bell dated 12 January 2021

36. Ms Bell has known Mr Ngata for almost four years.  She states that she has found Mr Ngata to be honest, passionate and dedicated.  She has been regularly trained by Mr Ngata and writes that during their time together she “learned of his depression, struggles and determination to be a better person and give back to the community using what he has learned on his journey”.  Ms Bell has met Mr Ngata’s family and confirms that Mr Ngata’s offending is out of character and that he would not reoffend should he be given a “second chance”. 

    Statement of Councillor Steve Christou made 17 November 2020

37. Mr Christou is Mayor of Cumberland City Council and has known Mr Ngata and Mrs Ngata for three years.  He writes that during the time he has known Mr Ngata he has found him to be caring, loving, and kind-hearted.  The offence that Mr Ngata committed is totally out of character and it is Mr Christou’s firm belief that Mr Ngata will not reoffend.  He writes that he has celebrated many occasions with Mr Ngata, including with his wife and family.

38. The following individuals provided statements of support for Mr Ngata which were accepted by the Tribunal. 

    Statement of Brentyn Wilson made 14 January 2021

39. Mr Wilson writes that he has known Mr Ngata for five years and found him to be professional and kind.  He knows Mr Ngata to be a devoted family man and hard worker who takes pride in assisting others to achieve their goals.  He also states that the period in which Mr Ngata has been away from home has been difficult for Mrs Ngata. 

    Statement of Philip Mahoney made 15 January 2021

40. Mr Mahoney is a former NSW police officer and a member of the Australian Federal Police.  He has known Mr Ngata for over 15 years as a friend and work colleague.  He writes of Mr Ngata’s remorse and shame at his offending and his disappointment in himself. In Mr Mahoney’s opinion, Mr Ngata “will never ever pose a risk to the Australian community again” and has offered himself as mentor and support person should Mr Ngata be released back into the community. 

    Statement of Timothy Knight dated 14 January 2021

41. Mr Knight has known Mr Ngata for three years and finds him to be a committed team player who has always “kept out of trouble”.  When working with Mr Ngata, Mr Knight has always found him to be a professional who has ensured the safety of his colleagues, patrons and himself.  He does not believe that Mr Ngata poses a threat to the Australian community and notes Mr Ngata’s commitment to his family and involvement in the lives of all his children. 

42. I will now turn to the considerations set out in the Direction. 

    PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

43. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Subparagraph 13.1(2) of the Direction further provides that decision-makers should consider:

    (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 Mr Ngata’s conduct to date

44. On 30 January 2020 Mr Ngata was convicted in the Supreme Court of the Australian Capital Territory of recklessly inflict grievous bodily harm and sentenced to 19 months imprisonment to be suspended after serving three months upon signing an undertaking to comply with good behaviour obligations for a period of 16 months. On the same day, Mr Ngata was also convicted of common assault for which he received a nine-month good behaviour bond. Mr Ngata appealed the recklessly inflict grievous bodily harm conviction, and on 17 April 2020 the Supreme Court of the ACT Court of Appeal upheld the conviction.

45. At the hearing Mr Ngata described the events prior to the 2019 offences.  His family had gathered to celebrate the first birthday of his youngest son, including two of Mr Ngata’s siblings who had travelled from New Zealand.  Mr Ngata had not seen his sister from New Zealand for many years.  All of them had been at the child’s birthday until five in the afternoon, before Mr Ngata and some of his family, including his siblings, went to a hotel room.  Mr Ngata estimates that over a period of eight hours he drank one litre of vodka at the hotel, after which he accompanied his brother, cousin, sister and brother-in-law to a nightclub.   

1. At approximately 2.54 am on Sunday, 19 May 2019 Mr Ngata was standing at the top of a staircase in the nightclub when he engaged in a verbal argument with the first victim of his offending, OU.  

2. OU had his arms by his side when Mr Ngata punched him in the face causing him to fall into a security guard. OU was moved to the top of the stairs and stumbled down the stairs.  Mr Ngata followed OU outside and OU was grabbed and followed by a “large group of people”.  Fearing for OU’s safety, BL, who was to be the second victim of Mr Ngata’s offending that night, grabbed hold of OU’s jumper and moved OU away from the disturbance toward the entrance of the nightclub. Mr Ngata then approached BL who had his arms outstretched in front of OU in a protective manner.  BL said words to the effect of “please don’t do this” but Mr Ngata punched BL causing him to lose consciousness and fall to the ground. 

3. Mr Ngata then moved to OU who put his arms up in a defensive manner.  OU was then punched by an unknown man and thrown to the ground.

4. After the melee came to an end Mr Ngata left the scene with four other people.  When the police spoke to him shortly after, Mr Ngata advised that he had no identification documents but provided his eight digit ACT security guard licence number and was allowed to leave the area.

5. In sentencing the Hon. Mossop J detailed the impact of the offending, particularly on BL:  

   All of the [Mr Ngata’s] actions in the public areas of Canberra city were caught on public safety CCTV cameras and some of the incident was also captured on a mobile phone by a concerned bystander. The video is disturbing in that it shows the ease and violence with which the offender struck BL as he rushed towards OU.

   BL prepared a victim impact statement which was read aloud by the prosecutor. The victim describes the anxiety and anger that he has felt since the assault. He is scared to engage in social activities that he used to enjoy for fear of being assaulted again. The victim describes the impact the assault has had on his girlfriend and how culturally it has been hard as he feels he cannot protect his family. He recognises that he needs counselling but describes feeling too embarrassed to obtain it.

   He also describes the physical effects of the assault. He was put on life support and was in intensive care for two days. These physical injuries have resulted in him fearing that he could injure himself further. He has also struggled at work with concentration and no longer has any sick days left. He has seen Facebook posts about the offender and the offender has also spoken to members of his family. This has angered him and added to his stress.

6. Justice Mossop explained the impact that Mr Ngata’s offending had on BL’s family:

   His partner of seven years also wrote a victim impact statement which was read aloud by the prosecutor. She describes the impact of seeing her partner in his injured state and thinking he was going to die. She notes that she now suffers from severe anxiety. She describes the anger she felt when she saw a news article and Facebook posts about the offender. She has received counselling which has helped but not resolved all her issues. She describes the strain that the assault has put on their relationship. The assault has also resulted in her working reduced hours at work in order to support BL. She also feels more antisocial due to fear of being injured herself in similar circumstances.

7. Whilst noting that the violent attack was not premediated, Mossop J considered Mr Ngata’s behaviour and moral culpability to be of significant seriousness:

   The objective seriousness of the offence of recklessly inflicting grievous bodily harm has two aspects: the nature of the behaviour in which the offender  engaged which is indicative of the offender's moral culpability, and the nature of the grievous bodily harm that was suffered by the victim. As far as the offender's behaviour and moral culpability are concerned, the offence is of significant seriousness…

   Although there was only one blow, it was a fierce one directed to the victim's head. The circumstances in which it was given increase the moral culpability of the offender in that the victim was attempting to non-violently de-escalate the situation and hence avoid any further confrontation between the offender and OU. He was an innocent person who had done nothing to provoke the offender who was acting appropriately by attempting to non-violently de-escalate a likely violent confrontation.

   The offender must have been well aware of his own capacity to inflict violence upon others, being a competitive kickboxer and having a history of playing semi-professional rugby. That known capacity to inflict violence makes his use of it more morally culpable. The injuries caused were in fact grave. The victim suffered a closed head injury and required emergency treatment at the scene and in the ambulance on the way to the Canberra hospital. He was in a life-threatening condition and required immediate airway management in order to preserve his life and emergency surgery in order to preserve his vision. The injuries he suffered included broken ribs , the collection of blood in his chest cavity, a fractured cheekbone and fractured eye socket. He was required to be placed in an induced coma. He was hospitalised for five days and was subsequently admitted for another two days for surgery. There was no premeditation on the part of the offender. It was a spontaneous act of significant violence directed to an innocent person on the offender's way to inflict further violence on OU. It is not in the most serious category of case because of the absence of premeditation or the use of a weapon and the potential for even graver injury to fall within the scope of this offence. It is similar to but somewhat less serious than the circumstances in R v Amosa [2015] ACTSC 34.

   The common assault on OU was a violent blow to the head. There was some verbal provocation of the offender. While it was a blow to the head, there was no evidence of further consequences of that blow.

8. Mr Ngata told the hearing that following the assault he went home and “brokedown” to Mrs Ngata and explained to her what had happened. He said he later reached out to close family members of BL to see if he was okay and if there was anything that he could do to help.  He said that learning BL was in intensive care as a result of his actions and that he had children and a wife made him feel very sorry, guilty and sad.  He told the Tribunal that he continued to communicate with one of the victim’s uncles after the assault.  During the hearing Mr Ngata was taken to part of the victim impact statement written by BL where he claimed that Mr Ngata had sought to have him “drop the charges”: 

   The offender [Mr Ngata] knows members of my family. The offender contacted my Uncle trying to justify why he hit me and asking my Uncle to ask me to drop the charges. This pissed me off more, it bought everything up again and showed nothing he did mattered to him. I kept thinking why did he do this to me? He also told my uncle that if he knew I was his nephew he wouldn't have hit me. This made me so angry, I thought if he knew me he wouldn't hit me but he shouldn't hit anyone like that ever.

   [Emphasis added]

9. Mr Ngata concedes that he spoke to BL’s uncle but stated that he only did so to find out if BL was recovering and if there was anything he could do to fix what he had done and to check on him.  He denies ever asking BL’s uncle to drop the charges against him.  He told the Tribunal that he never tried to justify what happened and he disagrees with the suggestion that he asked BL’s uncle or any of the victim’s family members to withdraw the charges.

10. Later in the hearing Mr Ngata clarified for the Tribunal that BL’s uncle had been the one to initially make contact with him. BL’s uncle told Mr Ngata that BL was the victim of his offence and was injured. Mr Ngata said that he knew BL’s uncle through “mutual associates” noting that “the community is quite small in Canberra”. He said that he contacted BL’s uncle quite often but sought to strike a balance between giving BL’s family space and wanting to check on the progress of his recovery.  Mr Ngata denied that at any point he discussed police involvement or progress of the police investigation into the offending.  He insists that he cannot explain how it is that BL came to the conclusion that there was pressure from him to withdraw the complaint or drop the charges.  He told the Tribunal in relation to the conversations he had with BL’s uncle:  

    Not once did I ever speak about dropping any charges or anything like that.  My main concern was about his wellbeing and if there was any way I could provide assistance or help or anything, hence why I worked to try and save some amount of money, like I said and never come close to what I put that family through but I … just to show them that I was remorseful for my actions and that I'm sorry.  If there's anything that I can do to make up for what I'd done to that poor family.

11. In the absence of further evidence, the Tribunal accepts Mr Ngata’s explanation in relation to his post offending contact with BL’s uncle. 

12. In making the reviewable decision, the Respondent identified that Mr Ngata had been convicted of an undeclared offence whilst living in New Zealand (“the 2013 offence”).  The Tribunal does not have the benefit of anything in the form of sentencing remarks or a statement of facts in relation to the 2013 offence.  However, Mr Ngata’s New Zealand criminal history report reveals that on 27 September 2013 he was convicted of Injures Intent to Injure/Reckless Disregard (Manually).  A New Zealand media article published three days after the offence reports that Mr Ngata along with three others “allegedly attacked and detained [the victim] in a car for a short period of time at Bastion Pt”. 

13. In a written response, Mr Ngata provides details of the 2013 offence.  He writes in part:   

    With regard to the 2013 incident itself, I will be glad to recount the incident to the best of my recollection in the hope that you will gain some understanding into the events that took place. The incident took place in January of 2013, almost 8 years ago. I was on a day out with my then-partner (Andrea’s) family at a local lookout and busy picnic spot. When we returned to our cars later that day, we found they had been broken into and handbags, wallets and other belongings had been stolen. We immediately began asking members of the public who were in the carpark at the time, if they had seen anyone breaking into cars. We received a detailed description of a group of young men that had been seen going through our cars and a description of the vehicle they were driving. As we were driving home from the lookout, we saw a car and group of men who matched the description we were given. We got out of the car and attempted to ask the group if they had seen anyone breaking into cars earlier and at this point an altercation began between us.

    Because of the group’s reaction to us, we assumed they were the thieves and one the men from the group then got pulled into our car. I was not the one who pulled the other group member into the car and I didn’t see which of our group actually grabbed him, as it all happened very quickly. However, once he was in the car, he was asked for information about his group’s whereabouts at the time and where our belongings were. After he told us what he knew (he didn’t have any of our belongings with him) he was let out of the car. Bystanders had called the police. At the time, I pleaded guilty to injures intent to injure/ reckless disregard (manually) and received 8 months home detention, a fine and community service. Knowing that I was at fault, I accepted my sentence and completed my home detention and community service without any issue. I did not know that I had a conviction. I did however have trouble paying off the fine.

14. During the hearing, Mr Ngata provided the additional detail that the victim in the 2013 offence obtained a bloody nose during the incident. 

15. As a result of the offending Mr Ngata was convicted and sentenced to a period of home detention of eight months, 150 hours of community work and ordered to pay reparations of $1316.  A second offence is recorded to have been committed on 10 November 2014 and the conviction of that offence was on 27 November 2014 for Breach Post Detention Conditions, for which Mr Ngata was convicted and discharged. 

16. Mr Ngata’s representative submitted that the Tribunal should accept that he did not know he had convictions in New Zealand.  The offence for which Mr Ngata was convicted on 29 September 2013 was a first offence and he was not sentenced to a term of imprisonment.  It was argued that Mr Ngata, who at the time possessed no familiarity with the criminal justice system, could not be presumed to have understood that a conviction had been recorded.  Mr Ngata also stated that he had no knowledge of the second offence of 10 November 2014, or that he had been convicted of it.  He speculated that it might have been for a late payment of a fine he was ordered to pay due to financial hardship. 

17. During cross-examination Mr Ngata was asked about the period in which he was subject to home detention.  He confirmed that the sentence of home detention had an impact on Ms Faofua who was his partner at the time.  He described it as “hard times for Andrea because now I couldn’t provide, I was just stuck at home”. It was put to Mr Ngata by the Respondent’s representative that having been detained at home, undertaken community service, paid fines, and given the impact on Ms Faofua, it was implausible that he was not aware that he had a criminal conviction.  Mr Ngata explained that he was unaware because after his home detention was complete and prior to him leaving New Zealand, criminal history checks required for his employers did not turn up any convictions. 

18. In her written statement, Ms Faofua confirms that she was present and supportive of Mr Ngata during the court hearing and sentencing for the 2013 offence.  She writes that she and Mr Ngata were living together with their two sons who were then aged “around 4 and 5” and that Mr Ngata’s period of home detention was a “hard time for our young family as [Mr Ngata] was unable to work initially”, so much so she does not know how they were able to make ends meet.  She also confirms that Mr Ngata had jobs in New Zealand which required him to complete police checks which always “came back clean”, including one for his security license.  She writes that both she and Mr Ngata were under the impression that as Mr Ngata had only received home detention, it was his first time being in trouble, and because it seemed to be a relatively minor offence, that he had been found guilty with no conviction recorded. 

19. Mr Ngata’s 2013 criminal conviction was recorded under an alias with a correct surname and alternative given name. It is the same alias that he provided to police officers when leaving the scene of the offending in Canberra and how he is addressed by those who know him in the supporting statements that are before the Tribunal.  Mr Ngata indicated that this was an administrative error on the part of New Zealand authorities, and in the absence of evidence to the contrary, the Tribunal accepts that it was so. 

20. The New Zealand Department of Corrections website provides the following information regarding home detention:

    Home detention is both a punitive and rehabilitation sentence. It requires an offender to remain at a suitable and approved residence at all times and be monitored 24 hours a day, seven days a week.

    Offenders on home detention must also complete programmes designed to address the causes of their offending.

    The sentence can address both the rehabilitation and re-integration needs of an offender, while placing restrictions on them such as being confined to a specific location, and special conditions such as electronic monitoring.

    …

    Home detention is an alternative to imprisonment and is intended for offenders who otherwise would have received a short prison sentence (of two years or less) for their offending.

    [emphasis added]

21. In light of the significance of the sentence imposed upon  Mr Ngata for the 2013 offence, particularly in terms of its impact on  him and his family, the Tribunal does not accept that Mr Ngata was unaware that the 2013 conviction was a criminal conviction in the conventionally understood meaning of the term.  The Tribunal accepts the Respondent’s argument that having attended court, pled guilty to the offence and subsequently applied for conditions of his home detention to be altered, it is reasonable to expect that Mr Ngata had a greater familiarity with the criminal justice system than he now contends he did.  As such, in answering “no” to the question “do you have any criminal conviction/s?”, it is accepted by the Tribunal that Mr Ngata knowingly provided false information on the 12 incoming passenger cards dated between 2014 and 2019. 

22. However, in circumstances where Mr Ngata received a security licence with no indication that he had a registered conviction, the Tribunal places less weight on his failure to declare the offending on his incoming passenger cards. 

    Conclusion as to the nature and seriousness of Mr Ngata’s offending

23. The Tribunal is satisfied that Mr Ngata’s offending to date is very serious.  As a trained heavyweight fighter, he would have been aware of his capacity to inflict significant physical harm when he hit the two victims at the nightclub in 2019.  The seriousness of Mr Ngata’s offending is reinforced by the sentences imposed upon him. 

24. Mr Ngata’s offending in Australia was a crime of violence and the Direction stipulates that crimes of a violent nature are viewed very seriously. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and must be viewed as a reflection of the objective seriousness of the offence involved. Mr Ngata was required to serve 90 days in prison for the 2019 offending, a sentence which is at the lower end of the spectrum for convictions of that nature. The Tribunal notes that in the course of sentencing, Mossop J stated that Mr Ngata “has no criminal history” in the context of his early guilty plea, indicating it may have been a mitigating factor in sentencing. It is also noted that on appeal, the Supreme Court of the ACT Court of Appeal observed that the sentence imposed was “slightly more than 12% of the maximum provided by law for the offence” and concluded “[i]f anything, the sentence imposed, requiring only three months of full-time imprisonment, was merciful”.

25. The Tribunal acknowledges that Mr Ngata’s offending did not involve sexual crimes or crimes against government representatives or officials.  Nor does his offending involve elements of frequency.  However, Mr Ngata’s acts of violence were sufficiently damaging that they should be viewed very seriously. 

    The risk to the Australian community

26. In considering the risk to the Australian community, subparagraph 9.1.2 of the Direction provides that 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 available information and evidence on the risk of the non-citizen re-offending (noting that decision should not be delayed in order for rehabilitative courses to be undertaken).

    The nature of future harm

27. The assessment of the nature and harm to individuals or the Australian community were Mr Ngata to engage in further criminal or other serious conduct is properly informed by the nature of his offending to date and the relevant provisions in the Direction.

28. In assessing whether an applicant represents an unacceptable risk to the Australian community, the Tribunal should have regard to the principle 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.

1. The injuries sustained by BL were significant and had serious ramifications for his partner and family.  He suffered a closed head injury which required him to be sedated and placed on life support.  He was in a life-threatening condition which required emergency surgery to preserve his vision.  His partner required counselling and had to take time off work to assist in his recovery. 

2. The Respondent refers the Tribunal to the Victorian Institute of Forensic Medicine’s report Australian Deaths Involving Coward’s Punches Research Update dated 27 June 2019.  The report estimates that there were 127 one-punch deaths in Australia between 2000 and 2016 and it is reported that “28 people have lost their lives to a one-punch assault between 2013 and 2016”.   

3. In light of the nature of his offending to date, the Tribunal is satisfied that should Mr Ngata further engage in conduct similar to that in which he engaged in the past there is a significant risk of serious catastrophic injury or even death to members of the community. 

   The likelihood of Mr Ngata engaging in further criminal activity

4. In considering the likelihood of Mr Ngata reoffending the Direction requires that the Tribunal take into account available information and evidence on the risk of reoffending. 

5. It was submitted on behalf of Mr Ngata that his offending was so out of character that it was an “aberration”.  He is remorseful for his conduct and the likelihood of Mr Ngata reoffending is “non-existent” or so remote that it should be concluded that he is not a risk to the community.  

6. Mr Ngata reasons that his offending was out of character and gave evidence that the time leading up to his offending was a period of great stress for him.  During the hearing he told the Tribunal in relation to the offending: 

   And I know that at that time that wasn’t me.  I’m not trying to shift the responsibility, I take full responsibility for what I done, but I was dealing with a lot at the time, mentally, emotionally, physically, you know, at that time leading up to I had just separated with my ex-partner Andrea and she had taken my two sons with her, and prior to ten years leading up to those boys had pretty much been my life.  I raised them, I provided for them, I loved for them, I cared - I cared for them, and to have them taken away from me in the fashion that it happened just really just hit me on a downward spiral.  You know, and that’s kind of the start of what led to - to me behaving the way I did. 

7. He told the Tribunal that before the offending he argued with his sister who he had not seen for approximately 20 years.  For cultural reasons, as the younger sibling, he was unable to argue with her as in his culture it is disrespectful for younger siblings to speak back to elder siblings. He had also been drinking heavily, which is not something he does very often and does not intend to do again. 

8. Mr Ngata maintains that he has bettered himself mentally, physically and spiritually since the offending, particularly whilst he has been held in immigration detention. He notes that in addition to the stress of his conviction and being separated from his family, he had to deal with the passing of his father in August 2020 whilst being detained.  He submits that he has found ways to cope with his emotions in a positive way and was able to move forward and continue to be productive.  He has learnt a lot of about himself since the 2019 offending. 

9. Mr Ngata submits that his poor mental health, specifically his depression, was a critical factor which led to his offending.  The fact that he is no longer suffering from depression is a significant protective factor which reduces the risk of his reoffending.  In therapy Mr Ngata learnt coping mechanisms which were put to the test in the nine months following his offending where he remained in the community without incident.  It was argued that most of the stressors which were present in the lead up to the offending remained, with the additional stress of the court proceedings, additional financial challenges, planning for the birth of his daughter and trying to secure a parental agreement with Ms Faofua. 

10. In summary, Mr Ngata identifies the following factors as contributing to his behaviour and stress: 

    (a)he was suffering from depression which was untreated;

    (b)he had stopped playing football and was turning down shifts at work because he could not bring himself to leave the house;

    (c)he was experiencing difficulties with Ms Faofua which resulted in him being cut off from his two sons and intermittently unable to contact them for extended periods.  Ms Faofua was making demands for “unreasonable” amounts of money and he was told that his sons did not wish to see him; 

    (d)his health was suffering and he experienced low kidney function, high cholesterol, diverticulitis and had identified lumps in his body which turned out to be benign;

    (e)at around the same time his sister who lives in New Zealand was diagnosed with cancer;

    (f)in 2019 his father suffered a “major heart attack” and required emergency surgeries; and

    (g)he had put on a significant amount of weight.

11. Mr Ngata writes that he could feel his personality changing during the time leading up to his offending and the only thing that kept him going through these hard times was the support of his wife and the birth of his son. Mr Ngata found the difficulties contacting his two eldest children particularly stressful.  He submits that the issues between himself and Ms Faofua, impacted his relationship with his sons and sent him on a downward spiral which contributed to his behaviour. He said that Ms Faofua’s actions in taking his two eldest children from him had left him devastated.

12. Mr Ngata is remorseful for his offending.  He submits that he was heavily intoxicated at the time of the offence, was verbally provoked by a racist comment made by the first victim, OU, and threats were made against him.  However, he was “immediately ashamed” of his actions and his reaction was excessive and he is now disgusted by his actions and the knowledge that he hurt someone. He has apologised to the victim and the victim’s family and friends.  Notably he saved up $3,000 which he provided to the second victim as “compensation” in the hope that it “may go a small way to helping” he and his family “move on from what happened”. 

13. He notes that he has not tried to deny or downplay the offending or to make excuses for himself and has subsequently sought to understand why he behaved the way he did on the night of the offending  because he “didn’t want anything like that to ever happen again”.   

    Evidence of Dr Danielle Clout

14. Dr Danielle Clout is a clinical psychologist who Mr Ngata was referred to by his general practitioner.  Mr Ngata saw Dr Clout on ten occasions between August 2019 and January 2020.  She also had separate sessions with Mrs Ngata.  In a written submission she states that Mr Ngata “became distressed following a racial slur from another patron at the club” and “expressed significant guilt and remorse for his behaviour and has taken several steps to make amends for his actions”. 

15. She states that “clinically speaking” his behaviour on the evening of the offending “appears extremely out of character”, noting that there is “no evidence of difficulties with anger management or antisocial behaviour in his recent background”.  She opines that “it is likely that his depressive symptoms and stressors leading up to the incident contributed to both his excessive drinking and behaviour”.  Dr Clout considers that Mr Ngata has good insight into his behaviour including the relationship between his mental health and alcohol use at the time of his offending.  Mr Ngata is reported to have “engaged exceptionally well in treatment…often exceeding expectations”.  

16. Dr Clout states that although Mr Ngata met the diagnostic criteria for a Major Depressive Episode, he no longer did so as of October 2019.  She concludes that “there is no foreseeable risk of Mr Ngata reoffending, and he is not considered to pose any risk to the Australian community”.  She notes in particular that Mr Ngata does not present with any ongoing risk factors for recidivism including substance dependence, antisocial attitudes, untreated mental health issues, self-esteem, frequent aggressive behaviour or relationship issues.  She told the hearing that she bases her opinion on psychometric tools and the inventory of offender risk, needs and strength measure. 

17. In her evidence to the Tribunal Dr Clout confirmed that to her knowledge Mr Ngata had not sought treatment previously and had not taken medication for his depression.  Regarding her anger management treatment of Mr Ngata, she told the hearing that she undertook this with Mr Ngata as he was unable to find a place in an anger management program.  Dr Clout worked with Mr Ngata to identify early warning signs of increasing anger and engaging with those warning signs and removing himself from the situation and then developing other strategies to manage anger and calm the situation. 

18. In Dr Clout’s opinion, Mr Ngata is extremely remorseful and she gave evidence that remorse is an important driver of commitment to treatments which may reduce the risk of recidivism. 

19. The Tribunal notes that in his sentencing remarks Mossop J accepted the evidence of Dr Clout that as a result of his previous history of depression Mr Ngata is at a “higher risk of developing a further episode of depression whilst in custody and that his current family circumstances are likely to make a sentence of imprisonment more burdensome than a person without those circumstances”.  However, he then went on to state: 

    I do not accept this submission by counsel for the accused that the offender’s mental health condition contributed to his offending conduct.  While there is a possible chain of indirect causation, it is too remote to warrant consideration in the Verdins sense. 

    It is possible, however, to take into account the evidence concerning the offender’s mental health in the period prior to the offending as part of his subjective circumstances.  It is important to note that in addition to the evidence of the offender, his wife and Dr Clout about his personal circumstances in the year prior to the offending, there was also evidence that he was continuing to pursue competitive kickboxing during that period, something that would have required significant motivation and drive.

    This evidence makes the picture of his mental state in the period prior to the offending somewhat more complicated.

20. Before the Tribunal is an article profiling Mr Ngata which appeared in the Canberra Times.  Dated 14 February 2019, the article makes mention of Mr Ngata having some health concerns but having “no other alternative but to fight on” for “his family” as he prepared to compete in a K1 kickboxing bout the following Saturday.

21. A further article appears in the Canberra Times on 28 June 2019 prior to “the MASA K1 state super heavyweight title” which was being fought the following Saturday.  Quoting Mr Ngata, the article states in part: 

    “The last two years out of the ring I had a bit of personal stuff going on so it took a bit of a toll on the mental side, but it’s all good now.  Everything is falling into place.” Mr Ngata said. 

    “I wasn’t happy with the last fight.  Even though I got the win, I just wasn’t satisfied.  Having two years out of the ring, you expect ring rust but now that’s out of the way, I’m hoping to get a better result.

    “I’m just looking forward to it now, now I’ve had a feel for how he fights.  It’s always the unknown, he might turn up with a different game plan but I can’t wait.”

22. During the hearing Mr Ngata was asked about his kickboxing training regime during the period leading up to the 2019 offence.  He maintained that whilst he was training as reported, he was doing the bare minimum.  This was confirmed by Mr Shane Tipa, who in testimony to the Tribunal indicated that Mr Ngata’s training regime was “inconsistent” at the time of the offence.  He was also carrying a lot more weight and was not in his best condition.  He observed also that Mr Ngata was not himself, though Mr Tipa conceded he did not know what was going on in Mr Ngata’s life at the time. 

23. Mr Ngata also maintains that he has not provided false or misleading information to the Department, including by not disclosing prior criminal offending, which is dealt with earlier in these reasons.  It is not in dispute however, that Mr Ngata was in the community up until his sentencing on 30 of January 2020 - a period of over eight months - during which he did not reoffend. 

24. Though Mr Ngata’s brother was deported from Australia following criminal convictions sometime between 2015 and 2017, Mr Ngata himself has never been formally warned of the possibility that his visa may be cancelled.  The Tribunal also accepts that Mr Ngata has not committed any offences while in prison or immigration detention. 

25. The first victim of Mr Ngata’s offending, OU, has written a statement in support of Mr Ngata’s “character and getting his visa reinstated”. OU confirms that he was the individual who Mr Ngata initially argued with, and states that he was under the influence of alcohol at the time and therefore does not remember much of what took place. Not long after the “incident” Mr Ngata “reached out” to OU and they have met several times in person since that evening.  OU writes that he is now “OK” and that he knows Mr Ngata “feels awful about what happened”. OU observes that having had an opportunity to get to know Mr Ngata, he considers his behaviour on the night of the offending to be out of character. OU also acknowledges that he was also behaving “out of character” that evening on account of his alcohol consumption. He now considers himself a friend of Mr Ngata’s and notes that he would not feel “threatened or unsafe if [Mr Ngata] is allowed to return to Canberra”. 

26. Mr Ngata reflected on the experience of being incarcerated, missing out on his children’s birthdays whilst in detention, losing his father, and the offending that brought those circumstances about and told the Tribunal that he has been able to “rationalise and cope” though a combination of study, therapy, self-reflection and faith.

    Conclusion as to the protection of the Australian community

27. Mr Ngata has repeatedly expressed his remorse for his offending and his failure to declare the 2013 offence.  He has demonstrated the extent of his remorse by providing financial compensation to BL which the Tribunal accepts as genuine and requiring a considerable sacrifice given his financial circumstances. 

28. The Tribunal considers that the following factors mitigate the risk that Mr Ngata will reoffend should he return to live in the Australian community: 

    (a)he has learnt additional coping skills through his work with Dr Clout;

    (b)he does not intend to drink heavily again in the future;

    (c)some of the external stressors, notably the issues relating to access to his two eldest sons, have been resolved or are no longer present;

    (d)he has spent a considerable period in prison and immigration detention during which he has sought to better himself;

    (e)consistent character references attest to the offending being “out of character”;

    (f)his genuine remorse demonstrated by his mentoring of others whilst in prison and detention and his amends to both victims of his offending;

    (g)his desire to be in Australia close to his family, particularly his wife and four children; and

    (h)the realisation that should he re-offend or engage in other serious misconduct it is likely that his visa will be cancelled. 

29. In the Tribunal’s view there remains a real risk that Mr Ngata may reoffend on account of the following considerations:

    (a)the observations made by Mossop J in the sentencing remarks that Mr Ngata’s mental state at the time of the offending does not reduce his moral culpability or responsibility for the offending;

    (b)Mr Ngata’s account of his poor mental state at the time of the offending is undermined by his demonstrated capacity to continue to train for and promote his involvement in kickboxing during that period; 

    (c)Dr Clout’s treatment of Mr Ngata was brief relative to the seriousness of the offence and not suggestive of any significant psychological disorder; and

    (d)though remorseful and aware of the injuries he had inflicted and later pleading guilty at the earliest opportunity to the charges, Mr Ngata did not proactively engage with the police but waited until he was contacted by them. 

30. Based on the evidence the Tribunal finds that there is a real, if reduced, possibility that Mr Ngata may re-offend.  Should Mr Ngata do so, the nature and seriousness of his offending represents an unacceptable risk of harm to members of the Australian community.  Consequently, this primary consideration weighs very heavily in favour of not revoking the mandatory cancellation. 

    PRIMARY CONSIDERATION B: BEST INTERESTS OF MINOR CHILDREN

31. Subparagraph 13.2.4 of the Direction provides numerous factors that must be considered, where relevant, in considering the best interests of children affected by the decision. 

32. Mr Ngata is the father of four minor children, all of whom live in Australia.  Mr Ngata’s two sons with Ms Faofua – child AF and child BF – are New Zealand citizens born February 2008 and August 2009 respectively.  AF and BF both live in Queensland with Ms Faofua. 

33. Mr Ngata’s two children with Mrs Ngata, child BC who is currently two years old, and child DC who is one, are both Australian citizens living in Canberra with Mrs Ngata. 

34. Witness statements, most pertinently those from Ms Faofua and Mrs Ngata, but also others, confirm that Mr Ngata plays an active role in raising all his four children and is a nurturing father.  This is accepted by the Tribunal.

35. Mr Ngata provides emotional psychological and financial support and AF and BF both visit him in Canberra, and he travels to Queensland to see them.  Should Mr Ngata’s visa cancellation not be revoked, he expects it will have a “very harmful” impact on his children. It is argued that removal to New Zealand would see Mr Ngata separated permanently from his children unless the children were to live in New Zealand, which is not a realistic option.  It is submitted that no one else could fill the role that Mr Ngata plays in the lives and upbringing of his four children.

36. Following their separation, Mr Ngata and Ms Faofua experienced a difficult relationship. Whilst his sons AF and BF stayed in Canberra living with Mr Ngata, issues began to emerge between Mr Ngata and the children’s mother. Mr Ngata reports that for the three years  between 2016 and 2019, the issues between him and his ex-partner worsened and he was “intermittently cut off from having any form of communication or contact with the kids”, during which he “would not hear from or see them for months at a time”. 

37. Noting that Mr Ngata’s eldest sons were for a period placed in the full-time care of Queensland Child Protective Services, Dr Clout writes in a statement that it is important that from a “clinical perspective” Mr Ngata be able to remain as an alternative  parent in Australia.  She considers that “being placed in foster care would have significant risks for the boys [sic] long-term wellbeing”.  In relation to the two youngest children, Dr Clout opines that the additional stress that Mr Ngata being deported would have on Mrs Ngata would contribute to “negative emotional, social, behavioural, and educational outcomes for the children”.  

38. During the hearing Mr Ngata told the Tribunal that his eldest son is currently experiencing difficulties and behavioural problems due to his age.  He believes he is the only person that can get through to his son and that having a parent appear through a screen or over the telephone does not have the same effect that it would if they are physically present with the child.  He noted that he is the only person his eldest son will “listen to” but that he cannot show him how to be, only tell him, when they are communicating remotely. 

1. Mr Ngata maintains that his children need him and that Ms Faofua is struggling with them now. Ms Faofua writes that both Mr Ngata’s eldest children are very anxious about his continued separation and the prospect of further separation from them should he be deported. They love their dad and miss him very much.  She says both of the children have been distracted at school and have had trouble completing their work and are missing Mr Ngata’s physical presence, love, guidance, and discipline. Ms Faofua reports that she has seen a negative shift in their behaviour and thought patterns over the time they have not seen their father. She says that she has also missed Mr Ngata’s emotional and financial support for their sons. Until Mr Ngata was imprisoned, he was helping her out financially and the costs associated with the two boys were shared equally between her and Mr Ngata.

2. Mrs Ngata writes that the Applicant is a loving and devoted father who takes pride in his family and in being a good role model for his children. She writes that having grown up without a father present in her life she can appreciate the toll that not having Mr Ngata around has had on his children especially his eldest son. Mr Ngata facetimes the children morning and night, and child BC has become very dependent on these calls. She notes also that their children, BC and DC, whilst only very young, have a special bond. Though DC is still a baby and has had only a short amount of time present with Mr Ngata, he has come to know him.   

3. Psychologist Vanessa Quigley writes on 10 July 2020 that if Mr Ngata is unable to reside in Australia neither of his two youngest children would have strong memories of him and Mrs Ngata would be required to raise the children independently. Both of these factors could potentially contribute to adverse outcomes through parenting quality, financial constraints and increased emotional stress. She notes also that separation from his family would likely be detrimental to Mr Ngata’s mental health and potentially contribute to relapse into depression. She concludes that Dr Clout has determined that the risk of Mr Ngata reoffending is low, however the risks of potential harm to his children should Mr Ngata be deported are high. 

4. The Respondent accepts that the revocation is in the best interests of the children he has with Mrs Ngata. However, the Respondent does not concede that non-revocation would result in long-term physical separation as it is likely that children BC and DC would be relocated with their mother and father to New Zealand. Consequently, it is argued that their interests would be impacted only in so far as their relocation alters their current living arrangements in Australia. 

5. The Tribunal notes Mrs Ngata’s evidence that she would not leave Australia should Mr Ngata’s visa remain cancelled.  If Mrs Ngata were not to relocate to New Zealand with BC and DC, the Respondent submits that there have been long periods of absence and limited meaningful contact on account of Mr Ngata’s imprisonment and detention. The children have been able to maintain contact with Mr Ngata and Mrs Ngata states that he has been able to play a meaningful role in their lives since his imprisonment and detention and there is no reason this could not continue. 

6. In relation to AF and BF, the Respondent notes that they primarily reside in Queensland with Ms Faofua and her partner.  Previously they would spend school holidays with Mr Ngata and the Respondent accepts that non-revocation would not be in their best interests. 

7. The Respondent also submits that given Mr Ngata’s vocational skills, experience and qualifications it is likely that he would be able to maintain any financial assistance he was providing if he were to reside in New Zealand.  The children would also be able to maintain contact with Mr Ngata by visiting him New Zealand and digital means. 

8. Mr Ngata is also the uncle of 12 minors who live in Australia.  He claims to have an important and active role in all of his nieces and nephews lives.  He states that his sister-in-law is a single mother and that he is the predominant male figure in the lives of her four children and provides them with both emotional and financial support.

9. Having considered the evidence in relation to the impact a decision would have on Mr Ngata’s four children, the Tribunal is satisfied that it is in the best interests of AF, BF, BC and DC that Mr Ngata’s visa cancellation be revoked.  The Tribunal accepts that he loves his children, has regular meaningful contact with each of them, and supports them emotionally and financially.

10. In relation to the two eldest children, AF and BF, the Tribunal accepts that both are anxious about the prospect of non-revocation and that it will be more difficult for them to see Mr Ngata regularly should he return to New Zealand.  The Tribunal notes however that they live interstate with Ms Faofua and her partner and are expected to continue to do so.  Whilst the Tribunal accepts that AF has some behavioural issues at school, given the nature of those issues, AF being located in Queensland, and Mr Ngata’s intention to continue to reside in Canberra, it is afforded less additional weight than it otherwise would be. 

11. Whilst there is limited evidence regarding his nieces and nephews, the Tribunal accepts that Mr Ngata has a meaningful presence in their lives and plays a role in their upbringing, notably by supporting his sister-in-law and travelling to Sydney to spend time with his nieces. 

12. Should Mr Ngata relocate to New Zealand, it will be disruptive to the lives of BC and DC.  If they are separated from their father, the Tribunal accepts that it will be more difficult to build a relationship with Mr Ngata and for him to be physically present with them.  Mrs Ngata would be expected to care for the children, which she finds significantly more difficult without Mr Ngata’s presence and support. 

13. For these reasons, the Tribunal is satisfied that it is in the best interests of each of Mr Ngata’s four children, and his nieces and nephews in Australia, that the cancellation of his visa is revoked. This factor weighs very heavily in favour of revocation, but not determinatively so.   

    PRIMARY CONSIDERATION 3: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

14. Subparagraph 13.3(1) of the Direction provides:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.

15. In FYBR v Minister for Home Affairs [2019] FCAFC 185 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 subparagraph 13.3(1) of the Direction.

16. Nonetheless, the question of whether it is appropriate to act in accordance with the expectations of the Australian community is left for the decision-maker to determine in the exercise of its discretion.

17. Having regard to subparagraph 13.3(1) and the principles set out in paragraph 6.3 of the Direction, the Tribunal is satisfied that the Australian community would have a low tolerance for Mr Ngata’s offending. The Australian community expects that a non-citizen “will obey Australian laws” while living in Australia and will generally “forfeit the privilege of staying” in Australia if they commit serious crimes of a violent nature.

18. For these reasons this consideration weighs very heavily against revocation of the mandatory cancellation of Mr Ngata’s visa. 

    OTHER RELEVANT CONSIDERATIONS

19. I now turn to other relevant considerations set out in the Direction. Paragraph 14 of the Direction provides that “other considerations” must be considered by the decision-maker where relevant.

20. The Tribunal notes that these are ‘other’ considerations, as opposed to ‘secondary’ considerations, consistent with the observations of Colvin J in in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]:

    The use by the Tribunal of the term 'secondary' indicates that the 'other considerations' are always of lesser importance. However, Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.

    Strength, nature and duration of ties

21. Mr Ngata has resided in Australia since 11 March 2015, when he was age 23, and contends he has extremely strong ties to the Australian community. 

22. In addition to his children and immediate family, Mr Ngata has established strong community ties which is accepted by the Tribunal on the basis of the witnesses who provided statements of support and were willing to appear before the Tribunal.  Based on the strong evidence of those who appeared in support of him, it is accepted that Mr Ngata has had a significant impact on members of the Australian community in the relatively short period he has been here and is genuinely well regarded. 

23. It is also accepted by the Tribunal that Mr Ngata has sought to fulfill his obligations and to support Ms Faofua and Mrs Ngata in particular, through financial and emotional support. 

24. The Tribunal heard directly from Mrs Ngata, who has struggled with postpartum issues following the birth of both their children and has found it hard to cope without Mr Ngata’s presence.  She also wrote that she has no energy to play with her children because she is exhausted from working. Mrs Ngata writes that since Mr Ngata’s incarceration and detention, her “entire world has crumbled’.

25. Mrs Ngata told the Tribunal that she would not leave Australia should Mr Ngata return to New Zealand. 

26. On 25 February 2020 Mrs Ngata posted to social media that she was likely moving to Auckland “in the next few months”.  Asked about this during the hearing Mrs Ngata confirmed that she had posted the comment soon after Mr Ngata received notice of his visa being cancelled.  She explained to the Tribunal that she felt her life was falling apart and she was trying to put on a brave face. 

27. The Tribunal notes in particular the testimony of Tanya Hobson and Robyn Hobson who both provided evidence of the meaningful impact Mr Ngata has had on their lives and the wellbeing of their families.   

28. Mr Ngata notes that he is an important source of support for his only sibling who lives in Australia, M.  After the passing of their father he contends that his support for M is more important than ever. 

29. Mr Ngata has made a contribution to the Australian community through gainful and remunerative employment and continues to do so through mentoring young people whilst in detention.  He has immediate family, a partner, children, friends and acquaintances in Australia and they will be affected by his removal.  The Tribunal accepts that Mr Ngata has strong ties to Australia and the Australian community. 

30. The Tribunal is satisfied that non-revocation of the cancellation of the visa will have a significant detrimental impact on Mr Ngata’s family and friends in Australia and this consideration weighs strongly, but not determinatively, in favour of revoking the cancellation decision.

    Impediments to removal

31. This part of the Direction requires the Tribunal to consider the extent of impediments Mr Ngata may face if he is removed.  Mr Ngata is a relatively young man and has lived in Australia for five years but has regularly returned to New Zealand during that time. 

32. Mr Ngata has many family members in New Zealand including his mother, brother and sister.  Mr Ngata appears to have vocational skills and experience which are transferrable to New Zealand’s employment market.  He will face no language or cultural barriers in New Zealand. 

33. Mr Ngata’s mother currently lives in a three-bedroom state house with three others, including his brother who was deported from Australia.  It is submitted that Mr Ngata does not wish to expose his children to that environment.  This may be the case, but there is no requirement that Mr Ngata reside in his mother’s home should he return to New Zealand. 

34. The Tribunal is satisfied that there are no social, medical or economic difficulties which have been identified that would impede Mr Ngata’s removal or his capacity to maintain a basic living standard comparable to other citizens of New Zealand.

35. The Tribunal finds that this consideration weighs neutrally.   

    CONCLUSION

36. In weighing up the relevant considerations, the Tribunal has been mindful of the impact of the decision on Mr Ngata and particularly his children, wife and family and friends in Australia.

37. As mentioned earlier in these reasons, section 501CA(4)(b) of the Act stipulates two alternative conditions required to exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (i) the Applicant must be found to pass the character test; or (ii) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.

38. Mr Ngata’s offending precludes him from passing the character test in section 501(6) of the Act.

39. I have considered the specific circumstances relating to Mr Ngata as part of my consideration whether to revoke the cancellation decision.  I am now required to weigh up those considerations. 

40. Mr Ngata’s offending was a crime of violence which resulted in serious harm to an innocent member of the community.  It was an “out of character” offence and for the reasons set out above the Tribunal is not satisfied that the explanation for the offending and Mr Ngata’s rehabilitative efforts are sufficient relative to the very serious harm reoffending in a similar manner may cause. 

41. Mr Ngata is a family man who has four minor children in Australia.  Two of his children live interstate and will be impacted by his removal, though to a lesser extent than might otherwise be the case.  His two youngest children will be heavily impacted by his removal, particularly if Mrs Ngata chooses to remain with them in Australia.  This consideration weighs strongly in favor of revoking the mandatory cancellation decision. 

42. Mr Ngata’s ties to the community weigh in favor of revoking the cancellation decision.  In the relatively short period in which he lived in Australia he has made a contribution to the Australian community, most notably through the role he has played in the lives of his relatives and friends.     

43. Having considered all these factors and the circumstances of this application, the Tribunal concludes that on balance, the weight of the primary considerations of the risk to the Australian community and the expectations of the Australian community outweigh the combined weight of the primary considerations of the best interests of the minor children and the strength, nature and duration of Mr Ngata’s ties to the Australian community.  Consequently, the Tribunal will affirm the reviewable decision. 

    DECISION

44. For the reasons outlined above, the Tribunal decides that the decision under review, being the decision of a delegate of the Respondent dated 8 December 2020, not to revoke the mandatory cancellation of the Applicant’s Subclass 444 Special Category (Temporary) visa pursuant to subsection 501(3A) of the Migration Act 1958 (Cth), is affirmed.

I certify that the preceding 155 (one hundred and fifty - five) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member.

..............................[SGD]..........................................

Associate

Dated: 3 March 2021

Date(s) of hearing:	11-12 February 2021
Advocate for the Applicant:	Mr N Dobbie, Visa Immigration Specialists Australia Pty Ltd
Solicitors for the Respondent:	Mr A Cunynghame, Sparke Helmore Lawyers