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

Ngati and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4863 (3 December 2020)
Division:GENERAL DIVISION
File Number(s): 2020/5626
Re:Anthony Ngati
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:A G Melick AO SC, Deputy President
Date:03 December 2020
Place:Hobart

The Tribunal sets aside the decision under review and substitues a decision revoking the mandatory cancellation of the Applicant’s visa made on 10 September 2020.
...............................[sgd].........................................
A G Melick AO SC, Deputy President
MIGRATION – refusal to revoke cancellation of Class TY Subclass 444 Special Category (temporary) visa – whether the Applicant passes the character test - whether there is another reason why the original decision should be revoked – protection of Australian community – nature and seriousness of conduct – risk to Australian community – risk of re-offending – best interests of minor children – expectations of Australian community – decision under review set aside
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116
Secondary Materials
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION

A G Melick AO SC, Deputy President
03 December 2020

The decision under review is a decision of a delegate of the Respondent made on 10 September 2020 (the “Reviewable Decision”) not to exercise the discretion under s 501CA(4) of the Migration Act 1958 (Cth) (the “Act”) to revoke the mandatory cancellation of the Applicant's “Class TY Subclass 444 Special Category (Temporary) visa" (“Subclass 444 Visa”) under s501(3A) of the Act (the “Original Decision”).
The Tribunal must determine whether the original decision to cancel the Applicant’s Subclass 444 visa should be revoked under s 501CA(4) of the Act.
FACTS
The following facts were outlined in the Respondent’s Statement of Facts, Issues and Contentions at Part II[1], as well as the exhibit evidence and the affirmed evidence of the Applicant. These facts were not disputed, and I find them to be correct:
[1] Responent’s Statement of Facts, Issues and Contentions, 30 October 2020, Part 11, pp 1-6.
The Applicant was born in on 15 August 1981 in Auckland, New Zealand. He arrived in Australia on 10 July 1982.
In 1994 the Applicant commenced his relationship with his current fiancé, Danielle King.
On 6 October 1998, the Applicant was convicted of the following offences in the Sutherland’s Children’s Court:
·two counts of goods in personal custody reasonably suspected of being stolen;
·possess implements to enter and drive conveyance;
·four counts of destroy or damage property valued less than $2,000; and
·five counts of larceny of value less than $2,000.
The Applicant was sentenced to 12 months supervision with juvenile justice.
On 29 March 1999, the Applicant was convicted of being an unlicensed driver in an unregistered and uninsured vehicle by the Campbelltown Local Court. He was issued with three $350 fines, four $52 court costs and a driving disqualification for six months.
On 19 April 1999, the Applicant was convicted of use of offensive language in a public place by the Campbelltown Children's Court. He was issued a $250 fine.
On 27 May 1999, the Applicant was convicted of the following offences by the Port Kembla Children's Court:
·be carried in conveyance taken without consent of owner;
·two counts of detain for advantage without causing injury to victim;
·common assault;
·resist officer in execution of duty;
·use offensive language in a public place; and
·intimidate police officer in execution of duty.
The Applicant was sentenced to $200 in fines, 550 hours of community service and 12 months supervised probation.
On 25 June 1999 the Applicant's first son [name redacted] was born.
On 23 August 1999, the Applicant was convicted of driving while disqualified by the Campbelltown Local Court. He was sentenced to a three-year supervisory order, a fine of $500, in addition to $52 in court costs, and a 12-month disqualification.
On 26 October 1999, the Applicant was convicted of the following offences by the Kempsey Local Court:
·three counts of steal a motor car/motor vehicle; and
·aggravated break and enter and commit felony in company.
The Applicant received a three-year supervisory order, and three months imprisonment.
On 12 November 1999, the Applicant was convicted of receipt of stolen property via felony (theft) valued at between $2000 and $5000 by the Campbelltown Children's Court. The Applicant was sentenced to a control order for one month.
On 29 November 1999, the Applicant was convicted of the following offences by the Liverpool Local Court:
·possessing prohibited article;
·self-administer/attempt to self-administer a prohibited drug;
·drive while disqualified from holding a licence second offence; and
·larceny valued at less than $2000
The Applicant was sentenced to a fixed term of four months imprisonment and had his driver's licence disqualified for two years.
On 4 April 2000, the Applicant was convicted of having goods in personal custody reasonably suspected of being stolen at the Kempsey Local Court. The Applicant was fined $400, in addition to $54 in court costs.
On 23 August 2000, the Applicant was convicted of the following offences in the Campbelltown Local Court:
·breach of recognizance; and
·steal from the person.
The Applicant was sentenced to imprisonment for eight months.
On 23 November 2000, the Applicant was convicted of the following offences in the Campbelltown District Court, confirming his convictions in the Campbelltown Local Court on 23 August 2000:
·breach of recognizance; and
·steal from the person.
The Applicant was sentenced to imprisonment for eight months.
On 8 December 2000, the Applicant was convicted of common assault in the Campbelltown Local Court. He was sentenced to a 12 months supervision order and placed on a service bond.
On 29 November 2002, the Applicant was convicted of larceny and robbery by the Campbelltown District Court. He was sentenced to two terms of imprisonment, one being for six months and the other for two years and six months.
On 5 February 2003, the Applicant was notified by the Department of Immigration and Multicultural and Indigenous Affairs that the Minister suspected that he did not pass the character test, but that the Minister had decided not to exercise his discretion to cancel the Applicant's visa. The Applicant was warned that the conviction of any further offences would result in a fresh assessment being made to again consider the cancellation of his visa.
On 1 May 2003, the Applicant was convicted of being an unlicensed driver/rider in the Liverpool Local Court. He was fined $800 and was ordered to pay $59 in court costs.
On 15 May 2004 the Applicant was convicted of damage to property by fire or explosive in the Liverpool Local Court. The Applicant was fined $500 in addition to $61 in court costs.
On 7 September 2004 the Applicant's eldest daughter [name redacted] was born.
On 22 February 2005 the Applicant was convicted of the following offences in the Liverpool Local Court:
·breaking and entering with the intent to steal;
·enter a vehicle or boat without consent;
·shoplifting value less than $2,000; and
·drive conveyance taken without consent of owner.
The Applicant was sentenced to 15 months imprisonment, two sentences of 10 months imprisonment, one sentence of three months imprisonment (served concurrently) and a fine of $563, including court costs of $63.
On 20 February 2006 the Applicant was convicted of the following offences in the Campbelltown District Court:
·robbery;
·take/detain person;
·two counts of obtain money by deception;
·intimidate a police officer in execution of duty; and
·supply a prohibited drug.
The Applicant was sentenced as follows to (as per the order of the offences above): seven years imprisonment, three years imprisonment, two sentences of one year of imprisonment, two months' imprisonment and one month imprisonment.
On 3 April 2008 The Applicant was convicted of possessing a prohibited drug in the Goulburn Local Court. The Applicant was imprisoned for 14 days.
On 21 May 2009 the Applicant was notified by the Department of Immigration and Citizenship that the Minister suspected that he did not pass the character test, and that the Minister (or a delegate of the Minister) was considering cancelling the Applicant's visa. The Minister referred to the sentencing remarks of the Campbelltown District Court on 20 February 2006 and invited the Applicant to comment.
On 15 June 2009, the Applicant was notified by the Department of Immigration and Citizenship that it had cancelled the Applicant's visa under section 501(2) of the Migration Act on 12 June 2009. The Applicant was advised of his appeal rights in the Administrative Appeals Tribunal (Tribunal).
In June 2009 the Applicant appealed the Minister's decision of 12 June 2009.
On 26 August 2009, the Tribunal set aside the Minister's decision of 12 June 2009. In its decision record, the Tribunal noted that there were "good reasons, perhaps for the last time, to entertain a degree of confidence that [the Applicant] has the motive, the opportunity and the support to achieve for himself the life that promised".
On 5 May 2010 the Applicant's second son [name redacted] was born.
On 26 July 2010 the Applicant was convicted of never being a licensed person driving a vehicle on road - second offence in the Campbelltown Local Court. The Applicant was fined $500 in addition to court costs of $76.
On 21 June 2012 the Applicant's youngest daughter [name redacted] was born.
On 15 June 2015 the Applicant was convicted of being unlicensed (for class, Class C, 3, LR or MR - prior offence) in the Liverpool Local Court. The Applicant was fined $500 and had his driver's licence disqualified for three years.
On 18 June 2015 the Applicant was convicted of the following offences at Goulburn Local Court:
·never licensed person drive on road - prior offence; and
·police pursuit - not stop - drive dangerously.
He was sentenced to three years’ disqualification and two years imprisonment.
On 23 June 2016 the Applicant was convicted of one count of stealing in Campbelltown District Court. The Applicant was sentenced to two years and eight months’ imprisonment.
On 16 December 2016 the Applicant was convicted of the following offences by the Downing Centre District Court:
·one count of possess an unauthorised prohibited firearm;
·four counts of dishonestly obtain financial advantage by deception; and
·one count of assault occasioning actual bodily harm in company with others.
The Applicant was sentenced to six years and six months’ imprisonment.
On 10 July 2017 the Applicant's eldest son died.
On 7 March 2018 the NSW Criminal Court Appeal Court granted the Applicant leave to appeal against his sentence of 16 December 2016 and the appeal was dismissed.
On 22 August 2019 the Applicant was convicted of common assault and sentenced to 12 months’ imprisonment by Lithgow Local Court.
On 5 December 2019 the Applicant's Subclass 444 visa was cancelled pursuant to section 501(3A) of the Act (the Original decision). The Applicant acknowledged receipt of this decision on 19 December 2019.
On 10 January 2020 the Applicant submitted a request for revocation of the mandatory visa cancellation, enclosing supporting documentation. Further documentation was provided on 15 January 2020.
On 16 January 2020 the Department wrote to the Applicant acknowledging the Applicant's representations.
On 22 May 2020 the Applicant, by way of his representative, provided the Department with further documentation in support of his revocation request.
On 17 June 2020 the Applicant provided the Department with further documentation in support of his revocation request.
On 6 August 2020 the Applicant, by way of his representative, provided the Department with further documentation in support his revocation request.
On 6 August 2020 The Department wrote to the Applicant in relation to further information the Department had received. The Department invited the Applicant to comment on this material.
On 19 August 2020 the Department wrote to the Applicant in relation to further information the Department had received. The Department invited the Applicant to comment on this material.
On 10 September 2020 a delegate of the Minister decided not to exercise the discretion in s 501CA(4) of the Migration Act, to revoke the Original Decision made under s 501(3A) (Reviewable Decision). The Applicant signed the Department form acknowledging this decision on 11 September 2020.
On 16 September 2020 the Applicant applied to the Tribunal seeking review of the Reviewable Decision.
EVIDENCE
Set out below are the numerous exhibits tendered at the hearing, many of which were letters of support and/or need from the Applicant’s family, including:
A letter from Paku Lowry Ngatikaura, the Applicant’s younger brother, dated 9 October 2020. In the letter, Mr Ngatikaura states that he believes the Applicant’s past experiences were due to a lack of support and awareness. He states that the Applicant possesses a drive today that he did not have earlier in life. He states he has spoken to the Applicant about strategies and goals that the Applicant has moving forward, and states the Applicant has told him he is ready to move on to a new path in life. Mr Ngatikaura notes that he has been in jail earlier in life and believes he can support the Applicant through his release based on his own past experiences. He confims the Applicant will have a full-time job with him at his fencing business when he is released.[2]
[2] Exhibit 2,
Two undated letters from Applicant outlining his experiences whilst in prison and his future intentions. In these letters the Applicant states that losing his eldest son was a life lesson and that he will never forgive himself for not being there for him when he needed him. He states he will use the traumatic experience as a driving force to never “stuff up” or do crime, use drugs or leave his wife and kids again. He states he is now a “changed man” with all that he has experienced in life and acknowledges his criminal history as ‘appalling’ and apologises to the people of Australia for the trouble and inconvenience his actions have caused. The Applicant also outlines his mental health diagnosis of drug induced anti-narcotic paranoia schizophrenia and notes that he is medicated for it. He states that he has set new goals while in prison and has been able to achieve them, including losing weight, which he has not been able to do in the past. He notes his children’s lives in Australia, including his eldest daughter being in her formative years at high school and having a job here. He states that with the support of his fiancé and family he has pulled through after the loss of his son. He says the community of Australia has ‘nothing to worry about’ with his release as he wants to be a father and husband.[3]
[3] Exhibit 4.
An undated statement from the Applicant’s son states that that he is sad that he may not get to see his dad again and that he has been “waiting so long for his dad to come home”. He outlines the happy memories he has with his dad. He says that if his dad must move overseas, he wants to live with him. He notes that this has made his mum sad, but he does not want his dad to be alone. He wants his dad to help him with school and having his dad home will make him feel safe and help him move past the death of his older brother.[4]
[4] Exhibit 5.
An undated letter from Danielle Ngatikaura, the Applicant’s sister, notes that she has always looked up to the Applicant and his actions have impacted all the members of their family. She states that the Applicant has admitted his faults to her and has taken responsibility for his actions. He is disappointed in himself and his remorse comes from not being able to say goodbye to his son and not being there for his family. She notes he has been persistent with changing his life for the better. She claims sending him to New Zealand will impact on him negatively and describes it as an “environment my parents worked hard to take their children away from”. She also notes it will be challenging for him to support his family from New Zealand and he may suffer psychological consequences. She confirms the support from the family that is available to him and notes that the Applicant has regular conversations with her young child (his niece) over the phone. She also notes that the Applicant’s family would not be able to afford to visit him, and his mother is not in good health, which could cause division in the family.[5]
[5] Exhibit 6.
There are multiple letters from Danielle King, the Applicant’s Fiance. These letters comprise of evidence of the difficulties their immediate family has faced since the Applicant has been in prison. Ms King states that the past few months have been horrible and very stressful. She confirmed that their son wants to live with the Applicant but her eldest daughter does not want to move to New Zealand. She states that the Applicant’s children have always come first to him; and no matter how bad things were, he has always maintained a close relationship with them. She states that the Applicant has matured in the past few years and can see that drugs and breaking the law is not a way to live. She sees a lot of positive changes in him and notes he is now drug-free. She admits that not having the Applicant around has been very difficult for her as she has had to parent their three children alone. She confirms she has been looking into counselling programs such as Beyond Blue to assist him in his recovery. She notes they have no family in New Zealand and is worried about what will happen to the Applicant if he is deported and that it will take his progress backwards. She notes probation and parole will work closely with him once he is released and she has a lot of external supports in place to assist him.[6]
[6] Exhibits 7, 8 and 20.
An undated statement from Jedda Leckey, the Applicant’s sister-in-law, explains that she has known the applicant for the last 20 years. She states that the Applicant admits to his faults, takes responsibility for his actions, and is remorseful for not being there to support his family when his son passed away. The Applicant is a big part of their family and his nieces’ and nephews’ lives. Sending him back to New Zealand will have a negative impact on him both physically and mentally as he will not be able to support his family or have their support in return. She also confirms that his extended family would not be able to visit due to finances.[7]
[7] Exhibit 9.
An undated statement from the Applicant’s yougest daughter explains that she misses her dad and wants him to come home. Whilst he has been in prison and detention, she has been able to keep in contact with him as he rings her on the telephone, and she writes him letters. She has not visited her dad in a long time because of COVID-19 restrictions; and she does not get to see him on video for long as she has to share the video link with her mum and other siblings. She is excited for her dad’s return and all the things they will be able to do together.[8]
[8] Exhibit 10.

A statement contained in an email dated 8 January 2020 from the Applicant’s mother, Irene Ngatikaura, explains that she believes her son has been led by the wrong crowd into drugs and crime. She often has sleepless nights worrying about her son’s safety and wellbeing. She is not proud of his behaviour and does not support or condone the crimes he has committed. She wishes she could re-educate her son and show him awareness. She notes that whilst she cannot undo the past, she can re-direct her son now if she is given the chance. She wants to support him to succeed in life and be there for his family, both immediate and extended. She notes that when Applicant was young, he was passionate about rugby and played in the state championship for three consecutive years. He made his parents proud in his sporting achievements and the records that he set. He partook in landscaping as a young teen and planted lots of the trees around the town which she shows her grandchildren often. The Applicant has lost two brothers in his life and she states she does not want to lose another son. She believes he was in a very dark place but has managed to overcome it and has the support he needs outside of prison, in his family.[9]
[9] Exhibit 11.
Two letters, one dated 17 June 2020 and one undated, from the Applicant’s eldest daughter confirm that because of her current life in Australia she would not be able to move to New Zealand, meaning she would likely never be able to see the Applicant again. She notes that he has missed so many of her and her siblings’ milestones. Her family has been through a lot and it is hard without her dad there to help. Despite this, her dad regularly supports her and gives her advice about how important school is. She states she is performing really well in school and that her dad encouraged her to sign up for nursing courses as her schooling comes to an end. She states she does not want to have to choose between her parents.[10]
[10] Exhibit 12 and 18.
A statement contained in an email dated 8 January 2020 from Kerrie King, the Applicant’s mother-in-law, states she has known the Applicant since he was 12, when he first started a relationship with her daughter. Her daughter Danielle is her carer and she relies on her to clean her home, cook, take her to appointments and shop for her. The Applicant coming home would take pressure off her daughter, and she notes that she would have to go into a nursing home if her daughter was unable to help her.[11]
[11] Exhibit 15.
A statement contained in an email dated 18 August 2020 from Morgan Ngati, the Applicant’s brother, notes that he had also been in trouble with drugs, addiction and had been in the juvenile justice system in the past. He has now been clean and drug free for four years. He states he is ready to support the Applicant make the drug free transition as he has. The Applicant indicated to him that “we have lost so many people whilst being here, we need to stop, our family needs us”. He confirms that the Applicant’s fiancé has always been there to support the Applicant.[12]
[12] Exhibit 17.
A statement contained in an email dated 13 January 2020 from Peti Ngati, the Applicant’s cousin, states that the Applicant helped him create the “Fires of the South Seas Entertainment Incorporation” – a non for-profit cultural organisation. The Applicant worked in this organisation to teach troubled teens about his heritage and he wants his children to take part in the program to learn about their heritage. He believes the Applicant is capable of making more positive change in the community if given the opportunity. He notes the Applicant has a great love and support for his family, extended family and the community. And that he has shown leadership in the community and with his own family, having raised well mannered, talented children.[13]
[13] Exhibit 21.
A statement contained in an email dated 17 August 2020 from Rua Ngatikaura, the Applicant’s brother, states that he believes his brother is ready to come home. He describes the Applicant as the most loving and caring person throughout his life. He notes that the Applicant has endured so much pain and loss due to the passing of loved ones while he was in prison. He believes the Applicant should be given the chance to come home and grieve the loss of his son with his wife and children.[14]
[14] Exhibit 22.
An undated letter from Shane Gadd, the Applicant’s brother-in-law states that he has known him since primary school. He notes that as a child and young adult, the Applicant was dedicated to sports and played rugby league for many years, receiving awards and trophies. He speaks to the Applicant regularly and notes that he has been disappointed that he has not been able to be with his family when they needed him. Mr Gadd believes deportation will have a large impact on the Applicant as he has no knowledge of New Zealand; and his support network and everything he knows is in Australia.[15]
[15] Exhibit 23.
A statement contained in an email dated 7 January 2020 from Teetu Ngatikaura, the Applicant’s sister, notes that the Applicant always made her feel protected when she was younger, and she looked up to him. The birth of his first child was a positive impact on his life, but he was taken over by addiction which cost him a lot in his life. She describes him as having “fallen prisoner to drugs and mental illness”. She asserts that deporting the Applicant would have a negative impact on all of the family. The Applicant’s fiancé and children need him to start the grieving process properly after losing their son and brother. She notes that the Applicant’s life and his children’s lives are set up in Australia, and he already has to face the lifelong lesson of losing his son while he was in prison. She confirms that he has taken courses to better himself and drug classes to self-manage his issues.[16]
[16] Exhibit 24.
In addition to these exhibits, were previous letters and statements from the Applicant’s immediate family including his fiancé and children, as well as:
·a Letter from ‘Johnny’s Fencing’, undated;[17]
·medical certificate of Dr Manku dated 13 October 2020;[18]
·NSW parole notification dated 11 September 2020; and[19]
·various case plans of the Applicant.[20]
[17] Exhibt 3.
[18] Exhibit 16.
[19] Exhibt 19.
[20] Exhibit 27.
The Applicant and his fiancé both gave evidence and were cross-examined. The Applicant’s evidence was consistent with the exhibits referred to above and I accept that he has a genuine desire to rehabilitate himself. However, he has had several chances before and hence this evidence must be treated with caution.
It does appear however, that the Applicant at last has some insight into the effects of his behaviour as shown by the answers given in cross-examination set out below:
MS HARGRAVE: And do you accept that this is a serious offence?---Yes, of course it is.
MS HARGRAVE: And why do you consider it’s a serious offence?
APPLICANT: Because people could’ve been hurt, serious shit could’ve happened. You know what I mean, like yes, even though there was no cars on the road like they say but still what about the police involved? Something could’ve happened with them, something could’ve happened to the people in my car. Like I said, my head wasn’t screwed on, I was in all different – I was just in a bad place, that’s pretty much it and I was making all just rash decisions and stupid ones at that. So when you’re on drugs you don’t make good choices, let alone the right ones, so I did – I stuffed up, it shouldn’t have happened but it’s happened and I can’t take it back. But it is wrong what I done, so.
MS HARGRAVE: So you just said that your head wasn’t in a good place at this time?---Yes.
MS HARGRAVE: What’s changed since 2015?
…
DEPUTY PRESIDENT: He said he lost his son.
MS HARGRAVE: Yes, thank you. And when did you lose your son, Mr Ngati? --- In 2017.
And how has that changed your life since that time?---I don’t know what to say to you.
DEPUTY PRESIDENT: Mr Ngati, that was your son [name redacted], wasn’t it?...
APPLICANT: Yes.
DEPUTY PRESIDENT: And how old was he?
APPLICANT: 18.
DEPUTY PRESIDENT: And what caused his death?
APPLICANT: His asthma.
DEPUTY PRESIDENT: All right. Were you in jail at the time?
APPLICANT: Yes.
…
MS HARGRAVE: Thank you. Mr Ngati, have you made any changes to your life since your son passed away?---Yes.
MS HARGRAVE: And what are those changes?---The drugs for one.
MS HARGRAVE: So are you – when you say the drugs for one, do you mean that you’re no longer on drugs?---Yes.
MS HARGRAVE: And can you explain when you came off drugs?---Yes, when I had a mental breakdown when I was in jail.[21]
[21] Transcript, 16 November 2020, pp 22-23 [14-26].
Ms King, the Applicant’s fiancé, gave evidence corroborating that of the Applicant. She is now a full-time mother but has been previously employed and has no criminal convictions. She was born in Australia and has no family in New Zealand; and she wishes the Applicant to remain in Australia to help with the upbringing of their children.
Despite criminal convictions the Applicant has been a positive influence on his children. His fiancé gave evidence that he has been there for the birth of his children, for their school, pre-school graduations, birthdays and Christmas’.[22] She stated that every time the Applicant was out of jail he was with his family, looking after his children with her. The following passage is from her cross-examination and provides a useful insight into their relationship and the changes in the Applicant’s behaviour:
[22] Ibis, p 53, [5-7].
MS HARGRAVE: Can you describe to me… when Anthony has been with you and the children… what day to day life is like for you?
MS KING: A lot easier…I have someone to share responsibilities with, which gives me more time to help look after my mum and not just – it takes the stress away if I have to be somewhere with one kid, he’s there with another kid. Instead of always trying to find someone to try and help out with that. But our routine – when he’s home, he cooks, no, he helps with the kids, helps with the cleaning, he does – everything that I do, he does.
Ms Hargrave… And in relation to – so he’s been in prison, or now in immigration detention for the last five years, has that – does that mean you’re now playing more of a parental role for the three children?
MS KING: Yes, he still calls, he calls me like eight times a day and I still have the call with the kids where I can say if you don’t listen, I’m going to tell dad when he calls and they’ll grow up and start behaving because they know he’s going to call. Like he’s not here but they still know that, you know, I’ve still got his help, he’s going to help me if they misbehave or anything, he’s going to talk to them and make them listen.
MS HARGRAVE: … And do you think if Anthony was deported, the calls would still have that effect on the children, they could still talk to their dad via phone calls?
MS KING: Probably not because over the past week they’ve got to FaceTime him when they want and it’s really starting to affect them more because they know how close by he is now, when we went to drop his stuff off. They’ve seen where he is so it’s a lot harder for them, like I think the past they’ve had – enjoyed because they get to see him a lot more, they can call him when they want to talk to him but it’s – now it’s like, how long until he’s home? Like they know he’s not where he’s always been. And now it’s more like, what’s next, how much longer until he’s here? Because we’ve always told them dad will be home before Christmas and now…
MS HARGRAVE: And in one of your statements that you’ve provided to the tribunal, which I believe is exhibit seven, you state that one of your children… wants to go to New Zealand with Anthony?---Our son.
MS HARGRAVE: And would you, as a family, consider going to New Zealand if Anthony was deported?
MS KING: It’s not possible, there’s no way we’d be able to do it.
MS HARGRAVE: And what do you mean when you say there’s no way we’d be able to do it?
MS KING: Well our whole – everything I know is here, I don’t have family there, I don’t – I wouldn’t be able to support us there, because yes – how do I pack all my kids up and move them to somewhere we’ve never been before? Force them to give up their (indistinct). It’s not something we’d be able to do, my daughter doesn’t want to go, she’s old enough to choose. Sorry… I’m my mums fulltime carer, if I don’t look after her she’ll have to go into the home, there’s just a lot that we can’t just give up and leave.
ME HARGRAVE: In terms of – so you stated earlier that you’d been with Mr Ngati since, was it 1994, is that correct?
MS KING: I was 13, since we’ve been together.
MS HARGRAVE: And you supported him throughout this time?---Yes.
MS HARGRAVE: And he has offended numerous times, to your knowledge?---Yes.
MS HARGRAVE: Despite your support?
MS KING: I think when he’s off the drugs, he’s the best. But once he gets on that, he has no control, he just (indistinct).
MS HARGRAVE: And do you recall a similar proceeding before the administrative appeals tribunal in 2009?---Yes.
MS HARGRAVE: And did you provide evidence in that proceeding?---Yes.
MS HARGRAVE: And did you state that – and in terms of what occurred at that proceeding and what evidence you gave, can you briefly recall that for the tribunal?
MS KING: I can’t remember what evidence I gave but I was there supporting him and I think, at that time, a lot was going on like his mother just passed away during that and then he lost his grandmother and my brother all in a matter of two months of that. So when he did come home, he didn’t have the support that we all promised we’d give him. He didn’t have the job because my uncle had to stop because my brother passed. Like everything we said that we were going to do, we didn’t do, everyone was trying to just deal with what he’d all been through the best we could.
DEPUTY PRESIDENT: … if your partner was allowed to remain in Australia and circumstances got tough again, what is there to stop the same thing happening?
MS KING: I think this time it was a lot – there’s a lot different. Like we’ve lost our son, nothing can bring that back, nothing gets harder than that. I don’t think anything will come up harder than that. We’re slowly – each day, he’s bettered himself either further without help so I know when he comes home, if he’s done all that alone in a cell, he can do so much more when he comes home. He has us to support him properly.[23]
[23] Ibid, pp 53-55 [36–31].
LEGISLATIVE AND POLICY FRAMEWORK
The following legislation provides circumstances pursuant to which revocation could occur:
(a)section 501CA(3) of the Act:
As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision
(b)section 501CA(4)(a), if the Applicant applies to have the decision revoked:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation
(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.
(c)The Tribunal standing in the shoes of the delegate is satisfied:
(i)that the Applicant passes the character test (as defined by s 501(6)): s 501CA(4)(b)(i); or
(ii)that there is another reason why the original decision should be revoked: s 501CA(4)(b)(ii)
(d)Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (the “Direction”), the relevant parts of which are set out below:
6.1 Objectives
1The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
2Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
3Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non- citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
4The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
6.2 General Guidance
1The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below 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.
2In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
3The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA.The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
6.3 Principles
1Australia 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.
2The 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.
3A 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 the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
4In 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.
5Australia 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.
6Australia 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.
7The 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.

Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa. I note that the Tribunal has jurisdiction under s 500(1)(ba) of the Act to review the decision of the delegate dated 10 September 2020

74. Section 501(3A) of the Act, read in conjunction with s 501(6) and s 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied that the person does not pass the character test by virtue of having a substantial criminal record, and the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth or a State or Territory.

Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).
In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38], North ACJ held that:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.
Part C of Direction 79 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non- citizen's visa. It comprises three "primary considerations" and several specified, but non- exhaustive, "other considerations", which must be taken into account.
The three Primary Considerations in Part C are:
(a)the protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(b)the bests interests of minor children in Australia (Primary Consideration 2); and
(c)the expectations of the Australian community (Primary Consideration 3).
The Other Considerations in Part C include:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed.
In applying the considerations, information and evidence from authoritative sources should be given appropriate weight: paragraph 8(2) of the Direction. Primary considerations should generally be given greater weight than the other considerations: paragraph 8(4) of the Direction.
Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has a "substantial criminal record" as defined in s 501(7) of the Act.
For the purposes of the character test, a person has a substantial criminal record under s 501(7)(c) of the Act if the person has been sentenced to a term of imprisonment of 12 months or more.
The Respondent outlined the following sentences received by the Applicant involving various terms of imprisonment for over 12 months:[24]
·term of two years and six months imprisonment on 29 November 2002;
·a term of seven years imprisonment on 20 February 2006;
·a term of three years imprisonment on 20 February 2006;
·two terms of 12 months imprisonment on 20 February 2006;
·a term of two years imprisonment on 18 June 2015;
·a term of two years and eight months imprisonment on 23 June 2016;
·a term of six years and six months imprisonment on 16 December 2016; and
·a term of 12 months imprisonment on 22 August 2019.
[24] G2, G documents, pp 53-60
As set out above, the Applicant has been convicted for offences and sentenced to terms of imprisonment of at least 12 months on eight occasions.
Accordingly, the Applicant did not dispute that he was sentenced to a term of imprisonment of 12 months or more, causing him to have a “substantial criminal record” for the purposes of s 501(7)(c), and therefore he does not pass the character test in s 501(6)(a).
Another Reason – section 501CA(4)(b)(ii)
As the Applicant does not pass the character test, it is necessary to ascertain whether there is another reason why the original decision should be revoked.
In Viane v Minister for Immigration and Border Protection [2018] FCAFC 116, Colvin J held:
[64] There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
Relevant to my further consideration of this matter I note the comments by Charlesworth J at [37]-[38] in FYBR v Minister for Home Affairs [2019] FCAFC 185:
[37] …
8. Taking the relevant considerations into account
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
[38] The “primary” and “other” considerations in relation to a visa applicant are those contained in cl 11 and cl 12 of Pt B respectively. The primary considerations are the protection of the Australian community from criminal or other conduct, the best interests of minor children in Australia and the expectations of the Australian community
In the same case, Stewart J held at [105]:
[105] The specific circumstances of the visa applicant are necessarily front and centre of every decision. That is made clear in cl 6.1(2) of Direction 65 which requires the decision-maker to consider whether to exercise the discretion to refuse or cancel the visa “given the specific circumstances of the case”. That requires an evaluative assessment. Direction 65 also identifies “principles” that “reflect community values and standards” (cl 6.2(1)). Those principles include that in the case of the commission of a “serious crime” a non-citizen “should generally expect” to be denied a visa (cl 6.3(3)). That principle is not expressed in absolute terms, as conveyed by the word “generally”. It is a question of weight, not prescription as to outcome. Also, the consequence of criminal or other serious conduct by a non-citizen may be different depending on how long and from what age they have been in Australia (cl 6.3(5) to (7)). Further, the best interests of minor children in Australia who may be affected by the decision is also a primary consideration (cl 11.2, and referred to in cl 6.3(7)). In any particular case, that primary consideration may outweigh, or contribute with other considerations to outweigh, the consideration of the expectations of the Australian community (cl 8(3)).
I will now consider whether there is another reason of sufficient weight and/or significance to satisfy me that the original decision should be revoked.
Primary consideration A: Protection of the Australian community Direction Paragraphs 13.1(1) and (2)
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens, and the community expects that noncitizens who wish to remain in Australia should be law-abiding. Ensuring that, by mandatory cancellation of visas without notice, serious offenders remain in either criminal or immigration detention while their immigration status is resolved is consistent with the above principles.
Nature and seriousness of the conduct
As set out at paragraphs [6] - [40] above, the Applicant has an extensive criminal history, commencing in October 1998, including offences involving violence such as assault and robbery, as well as numerous property and driving offences.
Noting that the Direction stipulates violent offences are viewed very seriously, I have considered a summary of some of the relevant facts surrounding such offences.
When sentenced to two years and six months imprisonment on 29 November 2002, for a robbery that occurred in September 2001, the court noted that the Applicant threatened a male victim at a petrol station, used the victim’s bank card to make an ATM withdrawal, stole his car sound system and forced him to hand over a necklace and bracelet.[25]
[25] G2, G documents, pp 159-160.
On 8 March 2004, the Applicant approached a victim on a train and told them that he had a knife. After taking the victim's wallet he demanded that the victim accompany him to an ATM and withdrew $850 of the victim’s money. On the following day he used the victim’s bank card to withdraw a further $170 of the victim’s money. Although the court accepted that no weapon or physical force was used and found the offences to be at the lower end of the scale of seriousness, the Applicant was sentenced, on 20 February 2006, to concurrent terms of imprisonment for periods of seven years.[26]
[26] G2, G documents, pp 149-150.
On 16 December 2016, the Applicant pleaded guilty to a charge of causing actual bodily harm arising from circumstances occurring 22 March 2013 when he, in the company of others, punched a male victim in his head and neck area causing a bleeding nose, injury to the right-side of his head and soreness to his head, neck and face. Thereafter, the victim’s credit cards were used to make withdrawals.[27] For that offence and others, the Applicant was sentenced to an aggregate term of six years and six months imprisonment; and unsuccessfully appealed his sentence to the Court of Criminal Appeal.[28]
[27] G2, G documents, pp 94-95.
[28] G2, G documents, pp 53-54.
On 22 August 2019, the Applicant was convicted of common assault arising from an incident whilst in prison, which involved him throwing kettle of water at a prison guard as he claimed he was suffering a mental breakdown. There was some dispute as to whether the water was very hot or was contained in a cup or a kettle, but the Applicant was sentenced to a further 12 months imprisonment.[29]
[29] G2, G documents, p 23.
Taking the above matters into account, together with his sustained history of criminal convictions, I find the nature and seriousness of the Applicant's criminal conduct involving violence is very serious, despite none of the victims suffering extensive physical harm.
Risk to the Australian Community
When considering whether the Applicant represents an unacceptable risk of harm, the Tribunal should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
Accordingly, in making my assessment as to the risk to the Australian community I have had cumulative regard to:
(a)the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct, and;
(b)the likelihood of further criminal or other serious conduct taking into account all the matters set out above, including the circumstances that have contributed to his offending and any mitigating factors, his remorse and the prospect of his rehabilitation.
Contributing factors in offending
The major contribution to the Applicant's offending was a persistent history of drug abuse; and for the latest offence there was also the impact of a mental illness. It is noted at exhibit 26 by Justice Health that the Applicant has ceased abusing substances and it appears that there has been a corresponding diminution of his mental illness. As at August 2019, he was meeting with a mental health nurse once fortnightly whilst at the Lithgow Correctional Centre.
There is also reference, in sentencing comments in 2006, to the Applicant reporting having been raised in an abusive and dysfunctional family environment.[30]
[30] G2, G documents, p 152 – sentencing report dated 20 February 2006.
It also appears that the Applicant could be more careful in deciding upon the company to keep. However, the common factor in all of his offences is substance abuse.
Because of the persistent comments relating to the effect of drugs upon the Applicant’s offences in the comments upon passing sentence, I accept that if the Applicant continues to refrain from using drugs there will be a low risk of re-offending.
Remorse
I find that the Applicant is remorseful for his actions. He has realised that his last offence caused him to be in jail - this during the period in which both his eldest child and father died. He has been extremely affected by the death of his son, especially because he was not on hand to be able to assist or be with him. The Applicant’s son was only 18 years old and died of an asthma-related condition.
The Applicant realises that he wants to be there with his fiancé to assist with the upbringing of the remaining children. He also acknowledges the harm he has caused his family and the community through his wrongful actions, takes full responsibility for those actions, and now understands that his past behaviour has been unacceptable.
Rehabilitation
Some of the matters set out below indicate there are prospects of rehabilitation, but unfortunately, because the Applicant has not been at liberty since deciding to turn his life around, those prospects have not been tested in the broader Australian community.
There have been many observations in the past about the Applicant's chances of rehabilitation, but such result is yet to be achieved.
When sentenced to two years and six months imprisonment on 29 November 2002, the view of the sentencing Judge was that the Applicant had gained insight into his problems and understood that counselling and other professional help was required to address his drug problem. His honour noted that the Applicant was in a stable relationship and that his partner and family supported him.[31] However, the psychologist providing the report described the Applicant as “immature, irresponsible, explosive, and violent if provoked”; and that his problems that arose from drug abuse and a lack of insight made relevant treatment difficult.[32] His Honour described the Applicant's path to rehabilitation as being very arduous.[33]
[31] G2, G documents, 162
[32] Ibid, pp 163-164.
[33] Ibid, p 167.
When sentenced on 20 February 2006, the sentencing judge took into account a psychologist’s report which opined that there was ‘an above average potential for recidivism’.[34] The psychologist opined that the Applicant had a personality disorder including antisocial attitudes, mild anger pathology and a significant predisposition for substance abuse. However, the psychologist considered the Applicant's commitment to his partner and children would contribute to having a reasonable chance of rehabilitation and recommended that the Applicant participate in programs providing support and counselling. The psychologist also opined that the Applicant required a longer period of supervision than usual.
[34] Ibid, p 151.
Such a course had the desired effect for approximately four-and-a-half years before the last offences which the Applicant was sentenced for on 16 November 2016. The sentencing judge noted that the Applicant had a supportive partner, stable home and close ties to the community. However, the Applicant continued to have a drug problem and was being treated with methadone and there was no evidence that he had accessed or attempted to access any rehabilitation programs whilst in custody.[35]
[35] Ibid, p 109.
The factors outlined above would not normally give much hope for rehabilitation in view of the many chances provided in the past. However, I note that, finally, the Applicant has participated in some appropriate courses whilst in prison, including the Equips program. He has stopped using drugs; such a decision prompted by the realisation that the substance abuse was causing him mental health issues as well as contributing to his unlawful behaviour.
In his statement dated 16 June 2020 referred to above, and confirmed in oral evidence, the Applicant recognises the harm he has caused his family and the community through his wrongful actions and accepts full responsibility, realising that his past behaviour has been unacceptable.[36] He states that, and I accept that, he is ashamed of his past actions. The loss of his eldest son at the age of 18 was heart-wrenching and he tried to block it out by using Ice in prison.
[36] Ibid, pp 241 – 246.
These events led to mental breakdowns which involved starting to hear voices and developing paranoia. The Applicant stated that the voices did not stop, even after medication. He stated his behaviour in prison was unacceptable and he was told that he suffered from a ‘drug induced anti-psychotic paranoia episode’
The Applicant has a long-suffering fiancé who has remained very loyal to him; and she wants her fiancé back in her own children's lives to help with their upbringing.
In my view, the prognosis as to his rehabilitation is at best guarded. But it appears that the events that occurred during his last period of imprisonment and the many statements of support cause some optimism as to his rehabilitation.
Risk of Reoffending
When considering the likelihood of the applicant reoffending, I have had particular regard to the issues summarised below.
The Applicant's History of Health Conditions[37] notes him as having an acute psychotic transient disorder as at the beginning of 2017, which is also referred to in Exhibit 26, a Sentencing Assessment Report prepared for a court date of 22 August 2019.
[37] New South Wales Department of Health – Justice Health and forensic Mental Health Network patient details summary dated 1 January 2017 – 23 August 2020.
Among other things, the report notes that the Applicant was in segregation due to poor behaviour, having accumulated 26 institutional misconduct charges since entering custody in March 2015.
The Applicant had the ongoing support of his fiancé, children and mother evidenced by regular visits.
The Applicant has a significant history of illicit substance abuse and aggressive behaviour which he attributes to his poor mental health. He maintained that his aggressive tendencies were linked to substance abuse which has led to a diagnosis of drug induced psychosis and unstable mental health.
The Applicant was assessed as having minimal insight as to the impact of his behaviour (for that series of matters) as he attributed it to poor mental health at the time when he was hearing voices which told him the victims were going to harm him. I now accept that he has significant insight as to the impact of his behaviour, both upon the community and his family.

The Applicant's most recent period of supervision was in 2010 by way of a parole order; and his engagement with Community Corrections appeared satisfactory despite a breach action being taken due to a re-offence. During the assessment period, the Applicant engaged on a satisfactory level with Community Corrections.[38]
[38] SM1, Respondent’s Summonsed Material, p 54.
The Applicant was assessed at a T3/Medium-High risk of reoffending according to the Level of Service Inventory-Revised (LSR-R).[39]
[39] SM1, Respondent’s Summonsed Material, p 54.
The Applicant was warned that he was at risk of losing his Visa in February 2003; and on 12 June 2009 the Minister cancelled his visa because of his substantial criminal record. The Applicant successfully appealed that cancellation to this Tribunal, which noted:
… There is a great deal of reason to be apprehensive about Mr Ngati’s ability to put his life into a situation where he becomes an effective member of the community and a member of the community from whom no protection is required. Having said that, there are also good reasons, perhaps for the last time, to entertain a degree of confidence that he has both the motive, the opportunity and the support to achieve for himself the life that promised when he was 16, and which through his own conduct he has, up until more recent times, put significantly at disadvantage.[40]
[40] G2, G documents, p 188.
Although the Applicant did not fully grasp the opportunity offered, I note that he did not commit a further offence for approximately four-and-a-half years - a substantial period of non-criminal behaviour when compared to his history overall. The evidence suggests that the lapse occurred as a result of, or at least was partially contributed to by his substance abuse and mental health issues.
When considering the risk of reoffending, I have taken into account all the matters outlined above and particularly the following matters which I consider to be indicative of lowering the risk of the Applicant reoffending:
·the Applicant’s now earnest desire to remain in Australia, maintain contact and live with his children, and his undertakings to abide by the law;
·the Applicant has the support of his fiancé and extended family and has confirmed employment with his brother who is a fencing contractor;
·the Applicant’s apologies and remorse for his past actions, as displayed in his statements and evidence;
·Despite being able to access drugs in prison the applicant has at last ceased his substance abuse; and
·If allowed to retain his Visa, the Applicant could be in no doubt that this would be his last chance.
Balancing the above factors, I consider that there remains an ongoing risk that the Applicant will reoffend; which could result in psychological and physical harm to members of the Australian community. However, after considering all the evidence I consider that risk to be low to medium, as opposed to the assessment referred to at paragprah [124], an assessment made without the benefit of the evidence presented at this hearing.
Best interests of minor children
I have considered the best interests of the Applicant's children, who are all under 18 years of age, as a primary consideration as required pursuant to paragraph 13.2 of the Direction.
Furthermore, paragraph 13.2 (4) of the Direction provides:
In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has three minor children born on 7 September 2004, 5 May 2010 and 21 June 2012.
The Applicant’s evidence in relation to the above matters is set out at paragraphs [53] and [69].
His fiancé’s evidence set out above at [56], [70]-[71] is very convincing as to the Applicant’s support for his children.
The Applicant’s three children have written indicating their ernest desire for their father to be able to remain and the 10-year-old feels so strongly about his attachment to his father he would want to go to New Zealand with him should he lose his visa. I consider that the 10 and 16 year old children to be sufficiently mature to be able to form their own views about their attachment to their father.
Although the children’s mother is fulfilling a parental role, she is having difficulty caring for the children in the absence of the Applicant as she also has caring duties for her mother. She was adamant that the Applicant provides a significant supporting parental role when not in custody.
Apart from his enforced separation, the Applicant’s past criminal behaviour does not appear to have had a negative impact upon his children and there is no evidence to suggest that the children have suffered any physical or emotional trauma arising from the Applicant’s conduct.
There was no suggestion, let alone evidence, that the Applicant has abused or neglected any of his children in any way.
Accordingly, I have no difficulty in finding that it is in the best interests of the Applicant’s three minor children for the decision to be revoked.
Expectations of the Australian community
Paragraph 6.3(3) of the Principles within the Direction states:
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 the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
The Australian community expects non-citizens to obey Australian laws whilst in Australia and, where there have been breaches of those laws or there is risk of further breaches, it may not be appropriate to revoke the mandatory visa cancellation of a person responsible for those breaches or to whom such a risk attaches.
Despite the Applicant’s apparently genuine remorse and good intentions, I find that the Australian community would expect that, in view of the matters set out at paragraph 6.3(3) of the Direction, and the number of offences committed by the Applicant over a considerable period of time, that he should not be allowed to remain in Australia.
Other considerations
The Direction identifies five other considerations which, when relevant, must be taken into account when deciding whether there is another reason why the original mandatory cancellation decision should be revoked. The relevant “other” considerations in this case are:
·the strength and duration of the Applicant’s ties to Australia;
·Impact on the Applicant’s victims and,
·the extent of impediments if the Applicant is removed to his home country.
Strength, nature and duration of ties
As noted above, the Applicant has been part of the Australian community for 38 years, since arriving here at the age of 11 months. The Australian community will usually afford a somewhat higher tolerance of criminal conduct for somebody in the Applicant's position, having grown up in this country.
He has a large, supportive, extended family in this country with no close relatives in New Zealand. He has never left Australia and has worked as a labourer when not in custody. I find that he has very strong ties to this country and none to any other country.
Impact on Applicant’s victims
There is no evidence of any adverse impact on the Applicant’s victims should he retain his visa and there is no suggestion of him ever later contacting or harassing any such victims after his offences.
Extent of impediments if removed to home country
I have considered the impediments that the Applicant will face if removed from Australia and returned to New Zealand, including the difficulties he will face in re-establishing himself and being able to establish a basic standard of living in the context of what is generally available to other New Zealand citizens.
I have also considered the following submissions from the Applicant to the effect that:
·he is now 39 years of age;
·he does not now suffer any diagnosed medical or psychological conditions;
·his entire extended family live in Australia; and
·his fiancé was born in Australia and has no relatives in New Zealand.
Furthermore, I have considered the following:
·the Applicant will face no language or cultural barriers if returned to New Zealand; and
·he will have access to health and welfare services that are available to all citizens of New Zealand, although there was some evidence from his fiancé that he would not receive such benefits until he had been in New Zealand for two years.
Although the Applicant would not suffer any language or cultural difficulties if removed, there would be substantial impediments including:
(a)the loss of physical contact with his fiancé and his children;
(b)he would find it difficult to obtain work, especially in light of his record of convictions;
(c)he would also find it difficult to support his family; and
(d)he would not have access to relatives or the type of extended family support available to him in Australia.
CONCLUSION
I have considered all relevant matters including:
·Ministerial Direction number 79 under section 499 of the Act;
·the representations received in relation to the invitation for the purposes of s501CA(4)(a) of the Act;
·the evidence given, and exhibits tendered, at the hearing including the evidence of the Applicant and his fiancé;
·an assessment against the character test as defined by s501(6) of the act for the purposes of s 501CA(4)(b)(ii) of the Act; and
·an assessment as to whether there is another reason why the mandatory Visa cancellation decision should be revoked for the purposes of s501CA(4)(b)(ii) and (5) of the Act.
As previously indicated, I am not satisfied that the Applicant passes the character test as defined in s501 of the Act.
In considering whether I am satisfied as to another reason for revoking the decision in relation to the Applicant's visa, I give significant weight to the serious nature of many of the crimes committed by the Applicant.
Although I am unable to negate the possibility of further offending by the Applicant, I consider that in all the circumstances there is a low to medium risk of such further offending. The Australian community should not have to accept that risk of further harm.
I have considered, as a primary consideration, that it would be in the best interests of the Applicant's children to revoke the mandatory visa cancellation decision. Although I am of the view that the Australian community would expect the visa to remain cancelled in view of the significant number of offences committed by the Applicant, there are very strong countervailing considerations in relation the Applicant’s children.
I have considered the ties the Applicant has formed by being a resident in Australia, since 11 months of age and for over 38 years. I have also considered the consequences to his immediate family if there was a decision not to allow the Applicant to remain in Australia, especially noting the strong representations made on his behalf by his fiancé.
Although the Applicant’s intentions are to be treated with a degree of caution, I was extremely impressed by the strength and resolute character of his fiancé; and I have no doubt that she will make every effort to assist with the Applicant’s rehabilitation. There is a strong emotional bond between the Applicant and his three minor children, and he is a good father to them despite his convictions.
I am therefore confronted with the very difficult task of balancing the primary considerations of the protection and expectations of the Australian community with that of the interests of the Applicant’s minor children.
I have carefully considered the reasons of the Delegate, who did not have the additional evidence presented before the Tribunal, and the very appropriate and professional comments by Ms Hargrave, representative of the Respondent.
Initially my view was that the protection and the expectations of the Australian community should prevail, but I now consider the interests of the minor children to be so significant that, when added to my findings of a greater chance of rehabilitation than in the past, lead me to the decision to revoke the visa cancellation.
The Tribunal therefore decides that the decision made on 10 September 2020, being the decision of the delegate of the Respondent not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa, is set aside.
In substitution, the decision to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked.
I certify that the preceding 161 (one hundred and sixty-one) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President.
..................[sgd].............................
Associate
Dated: 3 December 2020
Dates of hearing:   16 and 17 November 2020
Applicant’s Representative:               Ms Danielle King, finance of Applicant
Respondent’s Representative:          Ms L Hargrave, Clayton Utz

[2020] AATA 4863

3 December 2020

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Immigration

Administrative Law

Statutory Interpretation

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